01A21014
01-28-2003
Phillip C. Scearce, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Phillip C. Scearce v. Environmental Protection Agency
01A21014
January 28, 2003
.
Phillip C. Scearce,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A21014
Agency No. 2000-0055-HQ
DECISION
Complainant timely initiated an appeal from a final agency decision
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 for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Program Assistant in the agency's Office of Ground Water and Drinking
Water at the Waterside Mall facility in Washington, DC. Complainant
sought EEO counseling and subsequently filed a formal complaint on
February 25, 2000, alleging that he was discriminated against on the
basis of disability when the agency denied him reasonable accommodation
and in reprisal for prior EEO activity when the agency failed to engage
with him in the interactive process.<1> Specifically, as a form of
reasonable accommodation, complainant wanted to be reassigned from the
Waterside Mall facility. Concerning his reprisal claim, complainant
alleges that he was reprimanded for having contacted an agency employee
other than his supervisor about his request for reasonable accommodation
and that the agency intentionally delayed acting on his request and
responding to his inquiries. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
The agency did so and found no discrimination.
The Commission has reviewed the record in its entirety. We turn
our attention first to complainant's claim that the agency denied him
reasonable accommodation. Under the Commission's regulations, an agency
is required to make reasonable accommodation to 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). It is complainant's burden to prove, by
a preponderance of the evidence, that he is a qualified individual with
a disability, and it is the agency's burden to establish undue hardship.
If complainant fails to establish that he is a qualified individual with
a disability, the agency has no obligation under the Rehabilitation Act
to offer him reasonable accommodation.
Complainant stated that he has the following impairments: asthma,
Meniere's Disease, severe malignant hypertension, cardiomegaly, rhinitis,
sinusitis, allergies and sick building syndrome.
For purposes of this decision, we assume arguendo that complainant was an
individual with a disability at the time of the alleged discrimination.
Thus, we next determine whether complainant was a qualified individual
with a disability. A "qualified individual with a disability" is
an individual with a disability who satisfies the requisite skill,
experience, education and other job related requirements of the employment
position such individual holds or desires, and who, with or without
reasonable accommodation, can perform the essential functions of the
position. 29 C.F.R. � 1630.2(m). With respect to whether complainant is
a qualified individual with a disability, the inquiry is not limited to
the position actually held by the employee, but also includes positions
that the employee could have held as a result of job restructuring or
reassignment.<2> See Van Horn v. United States Postal Service, EEOC
Appeal No. 01960159 (October 23, 1998).
It is clear from the record that complainant experienced severe
respiratory distress in reaction to environmental contaminants at
the Waterside Mall facility. Complainant rejected the agency's offer
to permit him to work twenty hours per week from an alternative work
site because he believed that the only way he could be effectively
accommodated was by not having to report to work at the Waterside Mall
facility. Complainant did not dispute the agency's contention that
permitting him to work full-time from an alternative work site would have
rendered him unable to perform the essential functions of his position.
Rather, the record supports a finding that complainant was requesting
reassignment to another position as reasonable accommodation.
Complainant contends that the agency did not search for a new position
for him. It is the Commission's position that an agency's failure to
conduct an appropriate search for a new position for complainant will not,
by itself, result in a finding of discrimination. See Barnard v. United
States Postal Service, EEOC Appeal No. 07A10002 (August 2, 2002).
Rather, complainant has an evidentiary burden in reassignment cases.
This requires complainant to present sufficient evidence to support a
finding that, more likely than not, there was a vacant funded position,
for which he was qualified and to which he could have been reassigned.
Absent evidence of a particular vacant funded position, evidence that
a vacant funded position existed may be inferred based on documentary
or testimonial evidence regarding, inter alia: (1) complainant's
qualifications; (2) the size of the agency's workforce; and (3) indicia
of postings and/or selections during the pertinent time period within
classes of jobs for which complainant would have been qualified. Id.
Complainant did not avail himself of the opportunity to request a hearing
or otherwise develop this evidence, and the record before us does not
establish that, more likely than not, there was an accommodation which
would have enabled complainant to perform the essential functions of
his position or that there was a vacant funded position, for which he
was qualified and to which he could have been reassigned.
We therefore conclude that complainant failed to carry his burden of proof
to establish, by a preponderance of the evidence, that he was a qualified
individual with a disability within the meaning of the Rehabilitation Act.
See Bielfelt v. United States Postal Service, EEOC No. Appeal 01A10475
(June 19, 2002). Thus the agency is not liable for denying complainant
a reasonable accommodation.
Turning our attention to complainant's claim that the agency retaliated
against him when it failed to engage in the interactive process,
we restate that liability under a denial of accommodation theory
is not established solely by the agency's failure to engage in the
interactive process. See Barnard v. United States Postal Service,
EEOC Appeal No. 07A10002 (August 2, 2002). However, the Commission
recognizes that in some circumstances a complainant may be able to prove,
by a preponderance of the evidence, that an agency's action or failure
to act in processing his/her request for reasonable accommodation is
motivated by retaliatory animus. In the instant case before us, although
we agree with complainant that the agency delayed acting on his request
for accommodation, we find that the evidence is insufficient to support
a finding that either the agency's dilatory conduct or its maintenance
of complainant in LWOP status was, more likely than not, motivated by
retaliation.<3> However, we caution the agency that a supervisor's
wrongful suggestion that it is inappropriate for an individual employee
to provide medical information in connection with a request for reasonable
accommodation to anyone besides the supervisor could be actionable because
it could have a chilling effect upon the willingness of individuals to
seek redress through an agency's EEO office. The Commission's policy on
retaliation prohibits any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or others from
engaging in a protected activity. See EEOC Compliance Manual Section 8,
"Retaliation" No.915.003 at pp. 8-13 (May 20, 1998); EEOC Compliance
Manual - Volume II, 2 - Threshold Issues, EEOC Notice No. 915.003,
p. 2-23 (May 12, 2000).
While in this case, complainant was not discouraged from pursuing
his EEO rights, we remind the agency that it has a continuing duty to
promote the full realization of equal employment opportunity in its
policies and practices in every aspect of agency personnel matters.
29 C.F.R. 1614.102. An agency must, among other things, insure that
its managers and supervisors promote and enforce a vigorous equal
employment opportunity program and not interfere or discourage
employees from pursuing their rights. 29 C.F.R. 1614.102(a)(5);
Pruette v. United States Postal Service, EEOC Appeal No. 01951567
(March 3, 1998). The agency may wish to refer to the Commission's
Policy Guidance on Executive Order 13164: Establishing Procedures to
Facilitate the Provision of Reasonable Accommodation (October 20, 2000);
EEOC Procedures for Providing Reasonable Accommodation for Individuals
with Disabilities, Order No. 560.003 (February 7, 2001); and Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act
(as revised October 17, 2002). for further guidance on the appropriate
processing of requests for reasonable accommodation.
In conclusion, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final decision.
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
January 28, 2003
__________________
Date
1 Complainant's prior protected activity arose under the Rehabilitation
Act when he requested reasonable accommodation by informing his employer
that he needed an adjustment at work for a reason related to a medical
condition. See 29 C.F.R. � 1630.12(a); EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (revised October 17, 2002) at question 1.
2 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (revised October 17, 2002)
at Questions 25-31. These documents are available on the EEOC's website
at www.eeoc.gov. We note that because this case arose prior to June 20,
2002, 29 C.F.R. � 1614.203(g), the Commission's prior regulation regarding
reassignment, applies.
3 We also decline to find the agency liable for a violation of the
Rehabilitation Act in regard to its delayed response to complainant's
request for reasonable accommodation because the evidence suggests that
to a certain degree, complainant's own conduct contributed to the delay,
and the evidence does not suggest that reassigning complainant was,
under the circumstances, a simple form of reasonable accommodation.
See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act (revised October 17, 2002)
at question 10.