EEOC find federal employee failed to show discriminatory animus. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of disability,  sex (female), age (58), and in reprisal for prior EEO activity when she was denied a reasonable accommodation when she was advised that she was not selected for a bid position, she was subjected to harassment and denied a reasonable accommodation when she was advised that she needed to provide additional documentation of her need to sit in a chair while working, and that her use of the chair would be prohibited until the documentation was provided. Following the initial investigation, the Complainant requested a hearing, but the Administrative Judge (AJ) dismissed the hearing request on the grounds that Complainant failed to comply with several pre-hearing orders. The AJ remanded the complaint to the Agency, and the Agency issued a Final Agency Decision (FAD) finding no discrimination. Specifically, the Agency found that Complainant was unable to satisfy the threshold requirement that she was a “person with a disability” as defined by the Rehabilitation Act because she was not substantially limited in any major life activity, she had no record of the disability, and she was not regarded as having a disability by the Agency. The Agency held that Complainant was not “otherwise qualified” for the bid job she sought because she was only able to work four hours, and the job was a full-time 8-hour position.  The Agency further reasoned that the accommodation requested by Complainant of being allowed to only work four hours would pose an undue hardship.  With respect to Complainant’s request to use a chair while working, the Agency reasoned that it was appropriate to deny Complainant the requested accommodation because she failed to establish that she was a person with a disability, and was therefore not entitled. Complainant appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal the EEOC’s  Office of Federal Operations (OFO) held that even if the Complainant was a qualified individual with a disability, she failed to provide evidence to establish that the Agency’s decision to deny her the bid job was motivated by a discriminatory animus. The OFO further held that the reasonable accommodation she was requesting was essentially that the Agency create a new part-time position for her, and while the Agency had a duty to make a good faith effort to locate a vacant, funded position for which Complainant was qualified, it was under no obligation to create a new position for her. In regards to using a chair, the Agency is allowed to require the production of documentation for the need of a reasonable accommodation, and the Agency required all employees requesting a chair to submit such documentation. The OFO held that the Complainant failed to establish that she was discriminated against as alleged, and the Agency’s FAD was affirmed.

Complainant v. United States Postal Service, EEOC Appeal No. 0120111541 (June 12, 2014)

Attorney Kirk J. Angel represents federal employees in EEO investigations nationwide.