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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
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Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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MD state job. I have 2 mental conditions, that I filed with

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MD state job. I have 2 mental conditions, that I filed with my HR for which I received FMLA status. My direct supervisor and our former (my hiring) supervisor were informed of my condition. I was trying to make a go of it without asking for accommodation (I was never informed they had an EEO rep on site). A sudden firing occurred within my probationary period. Within the 10 days "administrative leave" while I am still technically an employee I requested ADA accommodation to HR as I had been setup for failure but could not contest the firing based on anything but legal means due to the probationary period. They say that because I didn't see the EEO rep beforehand, I do not have any rights under ADA and my appeal request to be transfered was denied. I am having trouble finding in the law anywhere where I have to make a request in order to be covered by ADA, much less to their EEO rep specifically (as opposed to an official request to HR). I get a 2nd level of appeal chance but I obviously need to make it count. What can I say as to their allegation that I had to have requested specifically to the EEO rep, and what can I argue that i do or do not have to follow to be protected?
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question. Please permit me to assist you with your concerns.

Just to be sure I understand correctly, you DID make a request but it was to HR directly and not an EEO agent, but it was denied because you made the request to the wrong person? And then you were terminated?
Customer: replied 1 year ago.

I made my request IN my appeal. The body of which (there was a form, but I attached this to it) said this:


 


State the issue of fact and law that support the employee’s appeal:


 


Fact: I was hired under the context that I was a good fit not for my pre-knowledge of the specific systems used in the job, but for my history of adaptable learning on the job and my general knowledge of development.


Fact: As a result of the above fact, I was told there would be on-the-job formal training, according to the hiring supervisor.


Fact: Many supervisors in my direct chain left employment or were reassigned positions several times since my hiring, including the hiring supervisor, who left employment.


Fact: The majority of the time that I was employed, formal education was promised without delivery. When it was finally delivered, it was only in the form of online reading. I was told to take a few hours out of the week at work to read this material, which cut into my productivity time, and was not stated as a considering factor.


Fact: In a response letter on file, I made it known some of the learning styles to which I had strengths and weaknesses. There was never any follow-up as to how this would work with any formal training.


Fact: Timelines and temporal goals for projects in which I was included were pre-formulated to established employee expectations and not adjusted for new employees learning how to accomplish such goals, much less ones with on-file disabilities.


Fact: I have on file two disabilities, Attention-Deficit Disorder Inattentive Type and Adjustment Disorder with Depressed Mood for which I was also granted FMLA status. These conditions and known record meet the requirements of 29 C.F.R. § 1630.2 (g)(1)(i) (2012) and 29 C.F.R. § 1630.2 (i)(1)(i) (2012).


All points taken in context, the employer failed to make reasonable accommodations before resorting to termination as required in 29 C.F.R. §1630.2 (o) (2012), citing at the disciplinary meeting it was unnecessary as this was a senior position.


 


Employee’s Requested Remedy:


 


Given the circumstances at hand, I feel it would be in everyone’s best interest if I were transferred elsewhere. Under 29 C.F.R. §1630.2 (o)(2)(ii) (2012) “Reasonable Accommodations” states “reassignment to a vacant position”. In order to escape the stigma that may come as a result of termination reversal, I have located a position at the Office of Communications & Public Affairs (OCPA) in Annapolis with the Maryland Judiciary, for which I am highly qualified. I find a transfer to another state agency in this context (assuming such factors as transferring applicable leave), an acceptable remedy.


 


This was sent to both HR and to the Deputy Comptroller (who makes the decisions on such disputes). In his response letter I received today, he said:



"At the hearing on the matter, it became clear that Mr. Eden had not requested reasonable accommodations to address his stated disabilities while an employee, as was his responsibility. his termination was decided upon based on performance alone, with his chain of command having, appropriately, no knowledge of his stated disabilities."


 


2 points of his statement are false. Since 1) he seems to ignore my request made while technically still employed since it wasn't to the EEO rep and 2) the only supervisor in the chain of command who didn't know was my supervisor's supervisor's replacement, and her supervisor (who was the only one present at the hearing). So of those still present, my direct supervisor was aware of my condition (since the hiring supervisor (who was my supervisor's supervisor) was aware but left).

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Christopher.

I think I am beginning to understand this a bit better. Please allow me to answer below, and if I am not making proper assumption, please stop me.

You posted:
Since 1) he seems to ignore my request made while technically still employed since it wasn't to the EEO rep and
Not quite. Making a request to relocate is not quite the same as claiming protection under FMLA. There I have to agree with the superior. Under ADA requirements you are protected when the employer is aware of your impairment, or you have a history of an impairment, or when you are thought to have an impairment. But you still have to request a formal 'reasonable accommodation'. A request to transfer is not a reasonable accommodation, even if it stems from your impairment.

2) the only supervisor in the chain of command who didn't know was my supervisor's supervisor's replacement, and her supervisor (who was the only one present at the hearing). So of those still present, my direct supervisor was aware of my condition (since the hiring supervisor (who was my supervisor's supervisor) was aware but left).
Being aware of your condition is not the same as being required to cover it--by your own comments you never requested reasonable accommodations but instead requested a transfer. That could be denied as it did not yet go through the EEO and be evaluated that no other reasonable accommodations exist.

----
What can I say as to their allegation that I had to have requested specifically to the EEO rep, and what can I argue that i do or do not have to follow to be protected?

The best defense here is to claim that as you were never informed of proper steps to take, you pursued what you believed to be proper steps based on good faith and a formal attempt to comply. Then if that is a successful claim, you could then state that you requested what you felt was a reasonable accommodation under the circumstance, put the employer on formal notice via HR, and requested an answer pertaining to your request.

 

Good luck.

Customer: replied 1 year ago.

Now I'm confused. Are you familiar with ADA? Because according to29 C.F.R. §1630.2 (o)(2)(ii) (2012) “Reasonable Accommodations” states “reassignment to a vacant position”:


"Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities."


 


So my request for reasonable accommodation was for a transfer to a vacant position.


 


Could you at least do me the favor of pointing out where in ADA law it requires me to contact their EEO rep? Everything seems to hinge on that, so if I could find where it states that and how it is worded I can argue on a point of law.

Expert:  Dimitry K., Esq. replied 1 year ago.

Christopher,

Thank you for your follow-up. I would be happy to clarify this for you.


Now I'm confused. Are you familiar with ADA?

I am extremely familiar with the ADA as I have taught classes on the subject.

 

Because according to29 C.F.R. §1630.2 (o)(2)(ii) (2012) “Reasonable Accommodations” states “reassignment to a vacant position”:

That is correct, but it is still up to the employer to evaluate what is 'reasonable' and what is not 'reasonable'. Before reassignment is granted, the employer can first evaluate whether there is a legitimate impairment in place, and then evaluate if other less drastic options exist other than reassignment.

 

"Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities."

That is correct but notice that first the employer is permitted to evaluate accommodations based on job restructuring. A relocation is quite possible but is a significant accommodation that may not be deemed reasonable.

 

 

 

So my request for reasonable accommodation was for a transfer to a vacant position.

A request to transfer to vacant position is generally meant to include one within the same department, division, or even building, and not one that is located in a different state, division, or department. That is a substantial request, and may not be considered to be reasonable under ADA regulations.

 

 

 

Could you at least do me the favor of pointing out where in ADA law it requires me to contact their EEO rep?

It does not, there I agree with you--contacting the HR representative is sufficient because then the duty is on HR to make a determination or advise you to contact a specific representative first. That argument by the employer is not valid and not reasonable.

 

Everything seems to hinge on that, so if I could find where it states that and how it is worded I can argue on a point of law.

It does not state that anywhere, the law requires notice to employer but not a specific employer, since the employer could be your direct supervisor or superior, your manager, or HR. All are agents of the employer and all are equally able to make a decision or at least bring it up to the party that can make a determination.

 

Good luck.

Customer: replied 1 year ago.

Ok, now I think we're getting somewhere.


Could you cite the section or sections of the ADA regulation that say what I -do- have to do to be considered covered by ADA law? If I'm to say "the law requires notice to employer but not a specific employer, since the employer could be your direct supervisor or superior, your manager, or HR. All are agents of the employer and all are equally able to make a decision or at least bring it up to the party that can make a determination." then I'm going to need to be able to cite exactly where as a counter arguement in order to refute the decision of the Deputy Comptroller.

Expert:  Dimitry K., Esq. replied 1 year ago.

Christopher,

Great to hear it! Here is the relevant statute:
Sec. 12102. Definition of disability

As used in this chapter:

(1) Disability

The term "disability" means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major Life Activities

(A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(3) Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

(4) Rules of construction regarding the definition of disability

The definition of "disability" in paragraph (1) shall be construed in accordance with the following:

(A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.

(B) The term "substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(E)

(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(iii) As used in this subparagraph

(I) the term "ordinary eyeglasses or contact lenses" means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term "low-vision devices" means devices that magnify, enhance, or otherwise augment a visual image.

Also this:

Sec. 12111. Definitions

...

(10) Undue hardship

(A) In general

The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered

In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include

(i) the nature and cost of the accommodation needed under this chapter;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

----
You can find the full law below:
www.ada.gov/pubs/adastatute08.htm

Good luck.

Customer: replied 1 year ago.

...I was kind of asking for specific entries. I've been reading the full law for a while now and I was having trouble wading through all of this, which is why I came on here in the first place. What I'm looking for is something like this: "29 C.F.R. §1630.2 (o)(2)(ii) (2012)" but for the specific entries in ADA that state exactly:


1) what one must tell their employer in order to be protected by ADA (primarily the format in which either I explain my disability or request accommodations)
2) to whom I must tell this to


If I can quote to them the exact law wording in order to prove I didn't have to tell their EEO rep in order to qualify, then my chances of success will SIGNIFICANTLY improve. I'm hoping since you're familiar you'd be able to wade through it and pick out those 2 points for me, instead of the hours I have spent pouring over this with little success.

Expert:  Dimitry K., Esq. replied 1 year ago.

Christopher,

1. Please look to the first section pertaining to what a 'disability'. There is no formal document you must provide, BUT you must show that the employer was aware that you had :
"

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

"

That is it, really. So long as you inform them, it is now used to grant you protection.

----

2.

As per Section 12111(5), you must tell you employer.:

...

(5) Employer

(A) In general

The term "employer" means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

(B) Exceptions

The term "employer" does not include

(i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or

(ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of title 26.

...

Notice it does not state a specific person, you can tell an employer's agent such as HR and it would qualify.

Good luck.

Customer: replied 1 year ago.

Ok, that seems good but does it say anywhere "employee must request reasonable accommodations from the employer" or something to that gist?

Expert:  Dimitry K., Esq. replied 1 year ago.

Christopher,

Seeking reasonable accommodations is an option an employee could utilize, it is not a requirement. It is not going to say that an employee 'must' request this as this is solely at the choice of the employee.

Good luck.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 37092
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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