01a50812
03-21-2006
George R. Petzer, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
George R. Petzer v. Department of Defense
01A50812
March 21, 2006
.
George R. Petzer,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A50812
Agency No. GA-03-004
Hearing No. 120-2004-00019X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) 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.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, an Inventory Management Specialist,
GS-2010-11, at the agency's Richmond, Virginia facility, sustained a
severe on-the-job injury on August 7, 2001, which rendered him unable
to report to work. On April 23, 2002, complainant requested that he
be allowed to work from home through the agency's flexiplace program.
Complainant provided the agency with medical documentation from his
personal physician, stating that he was able to sit, stand, and walk for
thirty minutes with a five minute break, and that he could work for four
hours per day. Management determined, however, that complainant could
only work from home four days per-week because an essential function
of his position required use of two separate databases that were not
accessible from a remote location. Complainant informed the agency that
this was not acceptable because he was not physically able to report
to work.
On October 23, 2002, management conducted a search for a vacant, funded
position into which complainant could be reassigned that would allow him
to work from home five days per-week, but no positions were identified.
By letter dated December 19, 2002, management issued complainant
a Notice of Proposed Separation for inability to perform the duties
of his position, to which complainant replied on January 28, 2003,
requesting a cancellation or postponement of the proposed separation.
On January 15, 2003, complainant again requested to work from home
via the agency's flexiplace program, stating that his prognosis for
recovery to any degree was poor, and that his restrictions were chronic
and permanent. Management offered complainant his Inventory Management
Specialist position on a part time basis (4 hours per-day), on January 28,
2003, and complainant responded on February 7 stating that he "agree[d]
to accept this position if reasonable accommodations are provided to
[him]" as he could not sit, stand, or walk for more than short periods
and he was "unable to drive." On April 3, 2003, the Department of Labor,
Office of Workers' Compensation, notified complainant that the position
offered by the agency was found to be suitable, and that the reasons
provided by complainant for refusing the offer were unacceptable.
Complainant filed a formal EEO complaint on November 4, 2002, alleging
that the agency discriminated against him on the basis of his disability
(back injury) when management did not allow him to work from home
as part of the flexiplace program. Complainant also alleges that the
agency subjected him to harassment on the bases of his disability and in
reprisal for prior EEO activity when management offered him the Inventory
Management Specialist position on a part-time basis, consisting of four
hours per day, five days per week, at the facility. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that after viewing the evidence in a light most
favorable to complainant, a decision without a hearing was appropriate
as there were no genuine issues of material fact in dispute. The AJ
found that the agency met its burden under the Rehabilitation Act to
provide complainant with a reasonable accommodation. The AJ also found
that complainant failed to show that the agency's action in offering a
part-time position constituted unlawful harassment on the basis of his
disability or prior EEO activity.<1> The agency's final order implemented
the AJ's decision. On appeal, complainant contends that the AJ erred
in issuing a decision without a hearing, and he reiterates his argument
that the agency failed to provide him with a reasonable accommodation
and harassed him by offering him the part-time position.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). The Commission's regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine
issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is �genuine� if
the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is �material� if it has the potential to affect the outcome
of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material fact
exists. We also find that, assuming without finding that complainant
is an individual with a disability pursuant to the Rehabilitation Act,
he has not shown that he is a qualified individual with a disability.
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. 1630.2(o) and
(p). "Reasonable accommodation" is defined in part by our regulations as
"[m]odifications or adjustments to the work environment, or to the manner
or circumstances under which the position held or desired is customarily
performed, that enable a qualified individual with a disability to perform
the essential functions of that position." 29 C.F.R. � 1630.2(o)(ii).
The record shows that complainant's specific request for accommodation
for his disability was that he be allowed to perform his job duties
at home. The agency denied this request, and has presented undisputed
evidence to show that this accommodation would preclude complainant
from performing essential functions of his position. Specifically,
the agency states that one of the essential functions of the Inventory
Management Specialist position involves working in specific databases
that can only be accessed at the facility. On appeal complainant points
to an electronic mail message, dated May 24, 2004, which states that
"if an employee's telework assignment requires them to access systems
such as DPACS and AIMS, they will need a high speed cable connection"
as evidence that the agency's stated reason for denying his request to
work exclusively from home is untrue. We find, however, that complainant
initially requested to work from home in 2002, and it is clear from
the record that at all times relevant to the instant complaint,
neither of the two databases was accessible from a remote location.
Thus, complainant could not perform any of the duties of his position
related to those databases from his home. As the evidence shows that
the requested accommodation of permitting complainant to work from
home would not have allowed him to perform the essential functions of
his position, we conclude that the requested accommodation was not a
reasonable accommodation. See 29 C.F.R. � 1630.2(o)(ii).
Further, 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.
Id.; see also Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). Here, the
record reflects that after informing complainant that he could not be
provided with the reasonable accommodation of his choice, the agency
attempted to locate a vacant, funded position commensurate with his
medical restrictions, but none were available. Upon review, we find that
complainant failed to identify any vacant, funded positions to which he
could have been reassigned or establish that such positions were likely
to become vacant during the relevant time period. Because complainant
failed to meet his evidentiary burden with respect to reassignment, and
we have found that he was unable to perform the essential functions of
his Inventory Management Specialist, we find that complainant is not a
qualified individual with a disability. Thus, we concur with the AJ's
finding that the agency did not violate the Rehabilitation Act.
Finally, we turn to complainant's claim that management subjected him
to harassment due to his disability and prior EEO activity. Based on
the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), in order to prevail on a claim of harassment, complainant must
prove that: (1) he was subjected to harassment that was sufficiently
severe or pervasive to alter the terms or conditions of employment and
create an abusive or hostile environment; and (2) the harassment was based
on his membership in a protected class. See EEOC Notice No. 915.002 (March
8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at
3, 6; Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Here, we find that complainant has not proffered
any evidence from which a reasonable fact-finder could conclude that
the agency's offer of a part-time position is sufficiently severe or
pervasive to rise to the level of actionable harassment. Accordingly,
we concur with the AJ's finding that complainant failed to show he was
subjected to unlawful harassment.
We find that viewing the record evidence in a light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order is 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
March 21, 2006
__________________
Date
1Although the AJ adopted the agency's
statement of facts in its entirety, as well as its analysis of the law,
the Commission has determined that the material facts are not in dispute,
and that complainant's claims were evaluated through appropriate legal
analysis in the Agency's Motion for Dismissal Without Hearing.