01964112
10-08-1998
Michael D. Storman, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Michael D. Storman v. Department of the Treasury
01964112
October 8, 1998
Michael D. Storman, )
Appellant, )
)
v. )
) Appeal No. 01964112
Robert E. Rubin, ) Agency No. 95-4064
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
_______________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (the Commission) from the final decision of the agency
(FAD) concerning his allegation that the agency violated �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001. For the reasons set forth below, we AFFIRM the FAD.
The issue presented in this appeal is whether appellant proved, by
a preponderance of the evidence, that he was discriminated against
because of his disabilities (tourette's syndrome<1>, keratoconus<2>,
and periodontal diseases) and denied a reasonable accommodation when in
November 1994, the Internal Revenue Service (IRS) failed to select him
for a temporary, intermittent Clerk position. Appellant contends on
appeal that the agency failed to address his claim that he was denied a
reasonable accommodation and erred in finding that he was not a qualified
person with a disability.
In September 1994, the agency was granted direct hire authority for
approximately 600 temporary positions for the period of October 1,
1994 through March 31, 1995. As a result, in September 1994, the IRS
advertised for temporary, intermittent employment opportunities for
Distribution Clerks, Data Transcribers, and Telephone Order Clerks at
its Western Area Distribution Center in Rancho Cordova, California.
The 600 positions were needed in order to assist in the processing of
tax form requests during the tax filing season.
The tour of duty was established as 6:00 a.m. until 9:00 p.m. Upon
applying, applicants were asked to indicate their hours of availability.
These work shifts were: 6:00 a.m. to 2:45 p.m., 6:45 a.m. to 3:30 p.m.,
8:15 a.m. to 5:00 p.m., 4:00 p.m. to 9:00 p.m., and 5:00 p.m. to 9:00 p.m.
An applicant had to be available for at least one of the five shifts.
All of the work shifts required a minimum of 40 hours each week, with
the exception of the 5:00 p.m. to 9:00 p.m. shift which required at
least 80 hours of work a month.
The record indicates that appellant telephoned one of the agency's
Staffing Specialists. According to her, he was concerned about the
agency's policy on hiring and accommodating people with disabilities.
Appellant was told that the agency hired disabled persons and made
accommodations for their disabilities. The Staffing Specialist also
suggested that appellant enclose with his application a letter regarding
what his limitations were, and what accommodations he would need.
On September 28, 1994, appellant applied for a position. Although his
application did not contain information about his disabilities, he
did attach a letter indicating that he and the Staffing Specialist had
reached an agreement that, as an accommodation, his working hours could
be limited to between 0 - 70 hours each month. On his application,
appellant indicated that he could not work either the 6:00 a.m. to 2:45
p.m. or 6:45 a.m. to 3:30 p.m. shifts; that he would work the 8:15
a.m. to 5:00 p.m. shift, if he had to, but he would prefer to start
at 9:00 a.m. rather then 8:15 a.m. due to "[h]is family obligations in
helping [his] wife get [his] 4 kids ready for school." Appellant also
indicated that he was available to work the 4:00 p.m. to 9:00 p.m. or
5:00 p.m. to 9:00 p.m. shifts.
The agency received more than 1700 applications for the advertised
positions. According to the agency, as applications were received,
they were date-stamped, numbered, and entered into a local database.
None of the applicants were ranked or rated, and no interviews were held.
Appellant was among 25 applicants who were not hired because they were
not available for at least one complete work shift, or because they set
conditions on their availability.<3>
According to the Staffing Specialist, appellant's application indicated
that he was unable to perform the duties of Data Transcriber. He also
indicated a lack of availability for day shift work which therefore
eliminated him from consideration for the Telephone Order Clerk position
and the day shift Distribution Clerk position. Although appellant
could work as an evening Distribution Clerk, he only wanted to work a
maximum of 70 hours a month. Appellant's application was referred to
the Distribution Unit Supervisor (the supervisor) in mid-November 1994.
The supervisor indicated that she rejected appellant's application because
of his lack of availability to start the swing shift at the designated
time, the fact that he could not work a full shift if required, and his
past work history, which indicated he was a potential problem employee.<4>
Although the Staffing Specialist was aware of appellant's disability,
the supervisor maintained that she was not aware.
Appellant contacted an EEO counselor on December 15, 1994. On January
18, 1995, he filed a formal complaint. The agency conducted an
investigation, and upon its completion, appellant was provided a copy of
the investigative file. Although he initially requested an administrative
hearing before an EEOC Administrative Judge, in January 1996, he withdrew
the request and asked for an immediate FAD. The agency issued a FAD
finding no discrimination in April 1996. It is from this decision that
appellant now appeals.
Appellant's allegation of physical disability discrimination is, in large
part, a claim of disparate treatment. Therefore, his allegation must be
analyzed under the tripartite analysis enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); and Prewitt v. United States
Postal Service, 662 F.2d 292 (5th Cir. 1981)(applying the standard to
disability cases). Appellant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and appellant must
then prove, by a preponderance of the evidence, that the legitimate
reasons offered by the employer were not its true reasons, but was a
pretext for discrimination.
To establish a prima facie case of discrimination based on a disability,
the appellant must show: 1) that he is a "person with a disability" for
purposes of the Rehabilitation Act, as defined in 29 C.F.R. �1614.203(a);
2) that he is a "qualified person with a disability," in that he is
qualified for, and can perform, the essential functions of the position
at issue with or without reasonable accommodation, as specified in 29
C.F.R. �1614.203 (a)(6); and 3) that he received an adverse employment
action as a result of his disability. Redd v. Department of Veterans
Affairs, EEOC Appeal No. 01943959 (February 15, 1996).
EEOC Regulation 29 C.F.R. �1614.203(a)(1) states that an "individual
with a disability" is one who has a physical or mental impairment which
substantially limits one or more of such person's major life activities,
has a record of such an impairment, or is regarded as having such an
impairment. "Major life activities" are functions, such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).
With regard to tourette syndrome, appellant presented evidence that his
condition is chronic and can be severe enough to be both physically and
socially disabling. According to the record, appellant's motor dexterity
is also impaired by this condition. Therefore, we find appellant is a
person with a disability. With regard to the impairments of keratoconus
and periodontal disease, we find that the medical evidence submitted
by appellant did not indicate whether these conditions substantially
limited any of his major life activities. For purposes of this decision,
however, we will assume, arguendo, that appellant is also a person with
a disability with regard to these impairments.
Appellant must now show that he is a "qualified" individual with
a disability within the meaning of 29 C.F.R. s 1614.203(a)(6).
That section defines a qualified individual with a disability as a
disabled person who, with or without a reasonable accommodation,
can perform the essential functions of the position in question.
The term "position in question" 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. The Commission finds that appellant
failed to establish a prima facie case of disability discrimination,
because he is not a qualified person with a disability. We note in this
regard that appellant, because he was not available to work at least one
entire work shift, could not perform the essential functions of any of
the subject positions.
Additionally, we find that even if appellant had established a prima
facie case, the agency offered a legitimate, nondiscriminatory reason
for not selecting appellant, that is, his lack of availability. We find
no persuasive evidence to rebut the agency's contention that appellant's
limited availability played the critical factor in its decision not to
hire him. Employers generally have broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
reviewing authorities absent evidence of unlawful motivation. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Based on the record before us, we find no evidence of a discriminatory
motivation in the agency's actions.
We also find that appellant has not established a connection between his
requested accommodation, i.e., working no more than 70 hours each month,
and the limitations imposed upon him by his disabilities. Appellant
presented no medical documentation to show that his disabilities prevented
him from working more than 70 hours per month. In his affidavit,
appellant maintained that when he first spoke to the Staffing Specialist,
he requested that he receive "[l]ower pay at the rate of $5.45 an hour
. . . ." After being told that this was impossible, appellant maintained
that they subsequently agreed that, as an accommodation, he could work
"zero to 70 hours per month at the rate of $6.65 per hour." According to
appellant, he sought this particular work schedule in order to protect
his Social Security and other benefits, which he maintained would have
been lost if he earned more than $500 a month.<5>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1According to the record, tourette's syndrome is a neurologic disorder
characterized by facial and vocal tics, complex movements, compulsive
utterances, and obsessive compulsive behaviors.
2According to the record, keratoconus is a progressive eye disease
involving the cornea.
3In November 1994, the agency hired 308 Distribution Clerks (29 disabled),
174 Telephone Order Clerks (16 disabled), and 110 Data Transcribers
(13 disabled).
4The supervisor did not indicate why she thought appellant's past work
history indicated he was a "potential problem employee;" however, we
note that his application indicated that he was once terminated during
a probationary period. Appellant maintained that he was terminated
"primarily" because of "[a] misinterpretation of [his] involuntary
neurological symptoms . . . ."
5In January 1998, the Commission received a letter from appellant
requesting that his complaint be remanded for an administrative
hearing. According to appellant, he initially withdrew his request
for an administrative hearing in January 1996, because he was facing an
impending divorce and was unable to represent himself. He enclosed a
copy of a January 1996 letter from the Administrative Judge to the agency
that outlines the circumstances surrounding his withdrawal request.
We find that appellant has not provided an adequate justification
for remanding his complaint for a hearing. Furthermore, we find that
appellant, by waiting two years to make this request, has not acted in
a diligent manner.