01a40720
04-27-2005
Fred A. Jones, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Fred A. Jones v. Department of Interior
01A40720
April 27, 2005
.
Fred A. Jones,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A40720
Agency No. LMS-99-008
DECISION
Complainant initiated an appeal from an agency decision, dated
September 17, 2003, concerning his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant was employed as a Supervisory Auditor, GS-13, at the Royalty
Management Program, for Minerals Management Service in the agency's
Dallas, Texas facility. Complainant filed a formal complaint on
February 7, 1999, claiming that he was discriminated against on the
basis of disability (depression and anxiety).
In its September 17, 2003 final decision, the agency determined that the
instant complaint was comprised of four claims, identified as follows:
(1) On June 1, 1998, during a teleconference with the Chief of the Dallas
Compliance Division, Personnel Officer at the Western Administration
Service Center (WASC) and a Personnel Specialist at the WASC, complainant
was threatened with termination within 48 hours.
(2) On June 2, 1998, complainant was informed by the Chief of the Dallas
Compliance Division, that his requests to continue to work at home would
not be granted.
(3) On June 1, 1998, complainant discovered that information given to
him by the Personnel Officer at the WASC in October 1997 regarding the
agency's responsibility for providing him with reasonable accommodation
was severely flawed and in violation of the Americans with Disabilities
Act.
(4) In mid-May 1998, the agency did not provide complainant with
reasonable accommodation in the form of a reassignment to an Auditor's
position at the GS-12 or GS-13 grade level in the Office of Enforcement.
At the conclusion of the investigation, complainant was informed of
the right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. While
complainant initially requested a hearing, by letter dated September 25,
2002, he subsequently withdrew his request. The AJ remanded the case
to the agency for a decision.
In its final decision, the agency noted that �complainant has a disability
(depression and acute anxiety) which led to his disability retirement.�
<1> The agency found that complainant was not a �qualified individual
with a disability�, within the meaning of the Rehabilitation Act, who
with or without a reasonable accommodation could perform the essential
duties of his position.
Regarding claim (1), the agency noted that a June 1, 1998 teleconference
took place following the approval of disability retirement by the Office
of Personnel. The agency noted further that when complainant was asked
to request a last day of pay, he suggested July 4, 1998. The agency
initially denied this request, believing that it was required to effect
the disability retirement request without delay. However, the following
day (June 2, 1998) the agency approved July 3, 1998, as complainant's
last day of pay. The agency found that complainant �was accommodated
in this instance,� and that the agency's �one day lapse� precipitated
by its initial denial of complainant's request was of no consequence.
Regarding claim (2), the agency concluded that management properly denied
complainant's request to work from home from June 1, 1998, until his July
3, 1998 retirement date. According to the agency, complainant indicated
that he wanted to create a smoother transition of the work flow from his
home, when possible, but that complainant nonetheless acknowledged that
working from the worksite was best. Complainant stated that he would
spend as much time as possible in the Dallas office. Agency management
noted, however, that complainant failed to do a sufficient amount of work
on a project from his residence to complete the project before retiring.
Consequently, management did not think it was reasonable to extend
complainant's work at home privileges during his final month on the job.
Regarding claim (3), the agency reasoned that complainant failed to show
that he was given false information. The responsible agency official
indicated that complainant only wanted to leave the agency and work
from home until his disability retirement became effective. According
to the official, complainant never requested or inquired about other
accommodations. Moreover, the agency official sought other positions for
which complainant was qualified, pending the approval of his retirement.
Lastly, with respect to claim (4), the agency determined that the auditor
positions that complainant inquired of were of the same type and kind
that he held, and indicated that he could not perform. Additionally,
regarding a Supervisory Auditor, GS-13, position, the record reflects
that a presence in the office on a regular basis was necessary in order
to complete paperwork, supervise staff and provide technical assistance.
The agency believed that complainant would not have been able to perform
the position in light of his inability to work with staff.
As a preliminary matter, the Commission presumes for purposes of analysis
only, and without so finding, that complainant is an individual with
a disability.
Claim (1)
In claim (1), complainant claimed that during a teleconference he was
threatened with termination within 48 hours. As noted above, the agency
asserts that on June 1, 1998, it believed that because complainant's
disability retirement had been approved, he could no longer remain
on the active payroll and could not be allowed to work until July 4,
1998, his requested last day of pay. However, on June 2, 1998, the
agency determined that it could indeed delay the effect of complainant's
retirement, and approved complainant's last day of pay for July 3, 1998.
The agency concluded that the brief delay in the eventual approval of
complainant's request that he be allowed to work until July 1998, was no
consequence to complainant. The Commission agrees. While complainant
believes that the initial threat to terminate him was discriminatory,
the Commission is not persuaded. The Commission has repeatedly found
that remarks or comments unaccompanied by a concrete agency action
are not a direct and personal deprivation sufficient to render an
individual aggrieved for the purposes of Title VII. See Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. United States Postal Service, EEOC Request No. 05940695 (February 9,
1995). Here, complainant has not alleged that he was terminated during
the teleconference, nor does he challenge the agency's assertion that he
was granted a July 3, 1998 effective date for his retirement. Therefore,
we agree that complainant was not discriminated against by the incident
in claim (1).
Claim (2)
In claim (2), complainant claimed that on June 2, 1998, his requests to
continue to work at home were not granted. The Chief, Dallas Compliance
Section, stated that he denied complainant's request to work at home
because complainant was needed in the office for transition purposes.
The Chief attested that complainant himself appeared to agree with
the agency's assessment that he was needed in the office during the
period preceding his retirement. Specifically, in a memorandum dated
May 29, 1998, complainant stated that �between now and July 4 [1998]
. . . I will spend as much time as possible in the Dallas office and I
request to be allowed to work as necessary at home. However, if it is
not possible to allow me to work at home, of course, all hours not spent
in the Dallas office will be charged to annual leave. My duty time will
be spent primarily to insuring a smooth transition of my cases to other
team leaders and auditors.� The Commission determines that complainant
was not the victim of unlawful employment discrimination when the agency
denied complainant's request to work from home during his final month
of employment.
Claim (3)
Complainant asserts in claim (3) that information given to him by the
Personnel Officer at the WASC in October 1997, regarding the agency's
responsibilities for providing reasonable accommodations, was flawed.
The agency stated in its decision that complainant failed to show that
he was given false information about working from home. The record
does not indicate that complainant was provided with misinformation,
or that complainant suffered any harm as a result of such alleged
information. Consequently, we agree with the agency that complainant
was not discriminated against by the events in claim (3).
Claim (4)
The term �qualified individual with a disability,� with respect to
employment, is defined as a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position held or desired. 29 C.F.R. � 1630.2(m). The term "position"
is not limited to the position held by the employee, but also includes
positions that the employee could have held as a result of reassignment.
Therefore, in determining whether an employee is "qualified," an agency
must look beyond the position which the employee presently encumbers.
Accordingly, the agency should consider reassignment. Id.; see also
Interpretive Guidance on Title I of the Americans With Disabilities Act,
Appendix. to 29 C.F.R. Part 1630.2(o).
Complainant alleges in claim (4) that the agency failed to reasonably
accommodate him with a reassignment to an Auditor's position at the GS-12
or GS-13 level in the Office of Enforcement. In such reassignment cases,
the complainant has an evidentiary burden to establish, more likely
than not, that there were vacancies during the relevant time period into
which complainant could have been reassigned. Complainant can establish
this by producing evidence of particular vacancies. In the alternative,
complainant need only show that: (1) he or she was qualified to perform
a job or jobs which existed at the agency, and (2) there were trends or
patterns of turnover in the relevant jobs so as to make a vacancy likely
during the time period. See Hampton v. United States Postal Service,
Appeal No. 01986308 (August 1, 2002).
Here, complainant contends that the agency failed to place him in an
Auditor position vacancy with the Office of Enforcement (claim (4)).
The record contains a copy of the Office of Enforcement memorandum
announcing non-competitive reassignments to Supervisory Auditor and
Auditor. The memorandum set forth the �major duties� of both positions,
which included the ability to participate in teams and audit effectively.
Moreover, the jobs involved travel to work sites. The Commission finds,
that these duties are like those in complainant's existing position which
he was unable to perform. Complainant has failed to provide evidence
of other vacancies for which he was qualified to perform and to which
he could have been reassigned.
In conclusion, the Commission determines that complainant did not
establish his claim that the agency violated the Rehabilitation Act with
regard to claims (1) - (4). Accordingly, the Commission determines
that the agency's decision finding no discrimination was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 27, 2005
__________________
Date
1In connection with his disability retirement
application, complainant stated that he experienced �serious difficulties
in concentration� and that this inability makes the performance of the
duties as detailed in his job description �impossible.� Complainant
stated that the inability to concentrate prevents him from performing
complex accounting analysis and that he has �marked difficulty in
functioning independently outside the area of [his] home.� Complainant's
disability retirement became effective on July 3, 1998.