07A30108
09-30-2004
Julio A. Helena, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Appeal No. 07A30108 Agency No. JQ-02-038 Hearing No. 370-A3-2047X
Julio A. Helena v. Defense Logistics Agency
07A30108
09-30-04
.
Julio A. Helena,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Appeal No. 07A30108
Agency No. JQ-02-038
Hearing No. 370-A3-2047X
DECISION
On April 22, 2003, the EEOC Administrative Judge (AJ) issued a decision
finding that the agency had violated Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
by not engaging in the interactive process with complainant regarding a
reasonable accommodation such that he could care for his disabled child.
Following its June 2, 2003 final order not fully implementing the AJ's
decision, the agency filed a timely appeal which the Commission accepts
pursuant to 29 C.F.R. � 1614.405. On appeal, the agency requests that
the Commission affirm its rejection of the AJ's finding that the agency
discriminated against complainant. The agency concluded that neither the
Rehabilitation Act nor the Americans with Disabilities Act requires an
employer to accommodate the disabled relative of an employee. For the
following reasons, the Commission AFFIRMS the agency's final order.
Complainant, a Materials Handler, WG-5, employed at the agency's Defense
Distribution Center, San Joaquin, California (DDJC) facility, filed a
formal EEO complaint with the agency on February 5, 2002, alleging that
the agency had discriminated against him on the bases of race (Hispanic),
sex (male), color (Brown), disability (lumbar strain and bilateral carpal
tunnel syndrome), and age (D.O.B. 2/13/43) when:
(1) on January 16, 2002, complainant was subjected to harassment by his
supervisor when she informed him that she had carried him in an Absent
without Leave (AWOL) status from December 17, 2001 to January 15, 2002;
(2) on January 17, 2002, complainant was subjected to harassment by
his supervisor when she notified him that his shift had been changed
from Monday-Friday, 7:00 a.m. to 3:30 p.m. to Tuesday-Saturday, 9:30
a.m. to 6:00 p.m.
(3) on January 18, 2002, complainant was subjected to harassment and
disparate treatment when his supervisor notified him that his request
to change his shift based on family hardship had been denied, and he
was aware that hardship requests of others had been approved;
(4) on or about August 27, 2001, complainant's supervisor directed him to
have the agency physician conduct an annual physical, and thereafter,
complainant became concerned about the physical when the physician
performed a full back exam, spending 45 to 50 minutes with complainant,
and questioned him regarding his medical history; and
(5) during May and August, 2001, complainant was subjected to harassment
when agency personnel contacted his doctor and the Department of Labor
in an effort to bring complainant back to work on light duty.
The record reflects that complainant was one of many workers who was
assigned a Tuesday through Saturday shift in order to provide increased
efficiency in providing military supplies to the troops in a timely
manner. In January of 2002, complainant informed the agency that he
had a child who is autistic and had a need for parental supervision.
Complainant provided written documentation of this need for parental
supervision. Complainant's supervisor denied the request for a change in
work shift stating that complainant knew of the (possible change of) shift
at the time he applied for the position, and should have made arrangements
for the care of his son at that time. Concerning complainant's AWOL,
the agency responded that because complainant did not return to work on
December 17, 2001, as had been reflected in his medical documentation, it
initially charged him as AWOL. Once further clarification was received,
complainant's AWOL was nullified, as his Time and Attendance report was
corrected to change the AWOL to workman's compensation.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
In an October 28, 2002 notice, indicating a possible decision without
a hearing, the AJ found that complainant's claims 4 and 5, concerning
the examination given him by the agency physician, and the alleged
harassment by agency personnel who contacted complainant's doctor,
should be dismissed as untimely filed.
The AJ also found that all of complainant's claims based upon his race,
color, sex, age and alleged disability are "legally insufficient."
Particularly with respect to complainant's alleged disability, the AJ
noted that "there is no evidence in the record that establishes that
either the complainant's bilateral carpel tunnel syndrome or lumbar
strain are substantially limiting impairments." The AJ further noted
that there is no evidence that the agency regarded complainant as having
a disability or that he had a record of such a disability.
In the AJ's April 22, 2003 Decision Without a Hearing and Order,
he specifically accounted that there is no evidence, "direct or
circumstantial," that the agency's explanations for its actions in
recording complainant's absence as an AWOL or moving him to another shift
was because of his race, color, sex, age or alleged disability, or was
pretext for such discrimination. He noted that the AWOL was corrected
in complainant's records after further investigation, and complainant
suffered no harm.
However, the AJ found that the agency had discriminated against
complainant because of his association with someone with a disability,
in violation of the Rehabilitation Act, by refusing to grant
complainant's request for a different work schedule. Specifically,
the AJ found that complainant had established a prima facie case of
association discrimination, in that the denial of complainant's requested
accommodation was done by the agency with knowledge that complainant had
a disabled son who required complainant's presence, and the denial of
the accommodation as initially explained by the agency was explicitly on
the basis of his son's disability: "You should have made arrangements for
your son before you accepted the position. Therefore, your request for
a shift change is denied." The AJ noted that the agency had asserted that
complainant was also denied the requested accommodation because he did
not have sufficient seniority to enable him to get the Monday through
Friday shift that he desires. The AJ found that this explanation was
sufficient to meet the agency's burden of articulating a reason for its
actions. However, while complainant calls into doubt the bona fides of
the agency's explanation on several accounts, the AJ reiterated that
the undisputed material facts show that the agency has discriminated
against the complainant, "even taking the [a]gency's explanations for
its actions at face value." The AJ then found that complainant had
established pretext. Mainly, complainant proved that his requested
accommodation is reasonable as an exception to the agency's seniority
system and established that the agency failed to engage in good faith
in the reasonable accommodation process. As relief, the AJ ordered that
complainant be paid $5,000.00 for pain and suffering, and if complainant
returned to work, after having been out of work temporarily disabled for
a period of time, complainant's seniority be credited to him as if he
had remained on the job. Finally, the AJ ordered that when complainant
returns to work, the agency engage in the interactive process with him
regarding a reasonable accommodation for his child. The agency did not
implement the AJ's decision, and asks that the Commission affirm its
final order.
In its appeal, the agency maintains that complainant was one of many
workers who underwent a shift change in order to provide increased
efficiency in providing military supplies to the troops in a timely
manner. The agency further maintains that requests received in response
to shift changes from employees without disabled relatives were denied,
just as complainant's request was denied. The agency strongly argues that
complainant's son is not entitled to a reasonable accommodation under
the law. The agency further argues that a "reasonable accommodation
is limited to qualified applicants and employees with disabilities."
It cites various case precedents which conclude that the AJ's notions
are misguided. The agency asserts that the AJ erred by not using a
Disparate Treatment analysis when resolving the facts of this case.
The agency maintains that under the appropriate analysis, complainant
does not even establish a prima facie case.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that summary
judgment was appropriate, as no genuine dispute of material fact
exists.<1> Concerning complainant's claim that he and his son were not
reasonably accommodated, the Commission determines that this matter is
more appropriately analyzed under a Disparate Treatment analysis.
In Polifko v. Office of Personnel Management, EEOC Request No. 05940611
(January 4, 1995), the Commission observed that it is unlawful under the
association provision to "exclude or deny equal jobs or benefits to,
or otherwise discriminate against" an individual based on his or her
association with an individual with a known disability. 29 C.F.R. �
1630.8. In the instant case, there is no dispute that the agency was
aware of complainant's son's impairment. Here, complainant is not an
individual with a disability, it is his son who has the disability.
Nonetheless, the Rehabilitation Act extends jurisdiction to individuals
who are not disabled, but who are associated with an individual who
has a disability.<2> The association provision contained in the ADA
states that it is a violation of the ADA for an employer to: exclude
or deny equal jobs or benefits to, or otherwise discriminate against,
a qualified individual because of the known disability of an individual
with whom the qualified individual is known to have a family, business,
social or other relationship or association. See Polifko.
A plaintiff attempting to establish a prima facie case of "association
discrimination" under the Rehabilitation Act must establish: (1) that he
was subjected to an adverse employment action; (2) that he was qualified
for the job at that time; (3) that his employer knew at that time that he
had a relationship with an individual with a disability; and (4) that
the adverse employment action occurred under circumstances which raised
a reasonable inference that the disability of the individual with whom he
had a relationship was a determining factor in [the employer's] decision.
Den Hartog v. Wasatch Academy, 129 F.3d at 1085 (10th Circuit 1997)
(applying the ADA).
While the record clearly establishes that complainant meets the first
three prongs of a prima facie case of association discrimination,
complainant has not shown that the adverse employment action occurred
under circumstances which raised a reasonable inference that his
son's disability was a determining factor in the employer's decision.
Specifically, the agency provided evidence that requests received in
response to shift changes from employees without disabled relatives were
denied, just as complainant's request was denied. Also, the agency
provided a comparator who allegedly has a disabled child, and whose
temporary request concerning a delay in the implementation of the new
shift was granted, in order to allow the employee to find child care.
Further, the record reflects that complainant lacked seniority and thus
was not on equal footing when competing for his desired duty shift.
We further note that the Rehabilitation Act does not require the
agency to provide complainant with reasonable accommodation so that
he may care for his son because the obligation to provide reasonable
accommodation only applies to qualified applicants or employees with
disabilities. Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix to 29 C.F.R. � 1630.8. Simms v. Department
of the Navy, EEOC Appeal No. 01992195 (May 16, 2002).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred. The agency has articulated legitimate,
nondiscriminatory reasons for their various actions. Further, construing
the evidence to be most favorable to complainant, we note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus. Accordingly, the AJ's finding of disability
discrimination on the basis of association discrimination is REVERSED.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
___09-30-04_______________
Date
1Regarding the AJ's dismissals of various claims for untimeliness and
failure to state a claim, we find that these dismissals were proper and
we affirm. Moreover, complainant does not challenge these determinations
in his appeal, but rather focuses on his denial of desired duty hours
based on the agency's failure to reasonably accommodate him and his son.
2The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.