EEOC finds Federal Agency’s request for information was not a denial of reasonable accommodation. Complainant, a federal employee working with the Department of Veterans Affairs, filed and Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of race (African American), and disability (head injury).  Complainant alleged that the Agency subjected him to harassment, disparate treatment and forced his resignation due to its failure to provide a reasonable accommodation. Following the initial investigation, the final claim was sent to the Merit Systems Protection Board (MSPB) as a mixed case, and the other claims were sent to an Administrative Judge (AJ) for a hearing request. The AJ denied the hearing request on the grounds that Complainant failed to comply with the AJ’s discovery orders regarding preliminary witness disclosure statements. The AJ remanded the case back to the Agency which issued a Final Agency Decision (FAD) finding no discrimination because Complainant failed to prove he was a qualified individual with a disability. Complainant then appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal, the EEOC’s Office of Federal Operations (OFO) noted that the AJ was within his rights to sanction the Complainant for failure to comply with the discovery orders. The OFO held that the Agency’s HR representative was incorrect in her assessment of what constituted an individual with a disability when she stated that the disability must be expected to last for 6 months or longer. Because Complainant was diagnosed with post-concussive syndrome and stated that he was substantially limited in the major life of concentrating, the OFO found that Complainant was an individual with a disability. The OFO further held that once a person requests a reasonable accommodation, it is within the Agency’s rights to request that documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. Complainant’s need for accommodation was not obvious, and the medical documentation did not discuss Complainant’s disability, his specific limitations, or his accommodation requirements, so it was also within the Agency’s rights to request additional documentation related to those issues; therefore, the request for this information was not a denial of a reasonable accommodation. As to the disparate treatment claim, the Agency was able to show that the legitimate, nondiscriminatory reason for issuing the counseling letter was that Complainant’s supervisor did not yet know that Complainant had been approved from FMLA leave, and was therefore not disparate treatment. Regarding the hostile work environment claim, the OFO held that Complainant failed to establish that he was subjected to harassment sufficiently severe or pervasive to constitute a hostile work environment.  The evidence established that management monitored his performance because he had documented performance issues, that management and Human Resources met with him and requested additional medical documentation pursuant to his requests for reasonable accommodation, and that the letters of counseling were issued before Complainant’s supervisor was aware of all of the relevant facts and would have been rescinded had Complainant returned to work. The OFO affirmed the FAD finding no discrimination.

Ike D. v. Department of Veteran Affairs, EEOC Appeal No. 0120161282 (May 17, 2018)  https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120161282.txt