01970594
06-24-1999
Alvin B. Durboraw, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Alvin B. Durboraw v. Department of Veterans Affairs
01970594
June 24, 1999
Alvin B. Durboraw, )
Appellant, )
)
v. ) Appeal No. 01970594
) Agency No. 93-2586
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq. The appeal is accepted by the Commission
in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant has established by a
preponderance of the evidence that the agency discriminated against him on
the bases of physical disability (bilateral shoulder impairment) and age
(68) when he was reassigned from his position as an Appraiser, GS-11,
in Dallas, Texas, to a position as an Appraiser, GS-11, in Waco, Texas.
BACKGROUND
This is the second appeal in this case. In its decision in the previous
appeal, incorporated by reference herein, the Commission remanded the
case for further development. Durboraw v. Dept. of Veterans Affairs,
EEOC Appeal No. 01950032 (March 18, 1996). The salient facts of the
case are as follows: Appellant does not have full use of his arms.
In 1993, he was employed by the agency as a Real Estate Appraiser in
the Loan Guaranty Division of its Dallas office. Appellant conducted
appraisals "in the field," which required him to cover 150 to 200 miles
per day by automobile. Appellant was involved in a head-on motor vehicle
collision which occurred when a spasm in one arm caused him to steer into
oncoming traffic when he was waiting to turn left at an intersection.
When appellant returned to work he was unable to drive for a time, and so
the agency allowed him to accomplish his appraisals by riding along with
one of the two Realty Specialists also employed in the Dallas office.
Eventually, however, the agency determined that the negative impact on
all three employees' workload was such that appellant's condition would
have to be addressed by other means.
Appellant submitted medical evidence to the agency in which his physician
stated that appellant's condition was permanent, but unpredictable, with
no way of knowing when he might have an arm spasm again. The physician
recommended that appellant undergo surgery for his condition, but
noted that the surgery would leave appellant more susceptible to injury
should a future accident occur. Appellant also submitted a report by a
rehabilitation specialist which indicated that, based upon a two-hour
observation, appellant could safely operate a motor vehicle if it was
equipped with power steering and a "spinner knob" and if he were permitted
to take periodic breaks from driving.<1>
The agency, however, determined that appellant's condition presented
too great a risk of harm. After further determining that there was no
work that appellant could perform in the Dallas office if he were not
permitted to drive, the agency reassigned appellant to a position in
its Waco office which did not require field work, at no loss of grade
and with relocation expenses paid.
On the previous appeal, the Commission remanded the case for the agency
to submit additional information, including information from appellant's
orthopedic surgeon or the rehabilitation specialist regarding the
probability of appellant's risk of future injury; information bearing
on appellant's reassignment; and witness statements and other available
evidence regarding appellant's allegation that he was pressured to
retire.
The additional medical information includes a May 22, 1996, note from
appellant's orthopedic surgeon, who stated, "[Appellant] does run some
risk of injury to himself with driving if he does not have a [spinner
knob].... The spinner knob would reduce the spasms in his arm in my
opinion." The other information obtained was a June 27, 1996, report
from the same physician noting that appellant had sustained further
injury (identified elsewhere in the record as a fall in the workplace)
and that appellant was unable to return to the position he held at the
time of injury (the position in the Waco office). No further information
was received from the rehabilitation specialist.
Regarding alternatives to reassignment, an April 25, 1994, agency
memorandum reflects that it was not known whether and when a computer
system being installed in the Waco office would also be installed in
the Dallas office (which might have facilitated the transfer of work
for appellant). The memorandum further reflects that the agency's
20-day timeliness standard for the Certificates of Reasonable value
(the work performed by appellant in Waco) could not be met if files
were transferred by mail, and mail transfer would also require a GS-4
program Clerk to spend 4 hours per day performing tasks incidental to
the transfer, at a cost of about $8450 per year. The memorandum also
noted that if the agency gave up the Appraiser position in the Dallas
office (i.e., removed appellant's field duties), the field appraisals
would have to be done by an Appraiser from the Waco office at a cost of
$7700 for travel plus mileage costs per year.
Regarding appellant's allegation that he was pressured to retire,
the Manager, Loan Guaranty Division, (the Manager) and the Assistant
Personnel Officer (the APO) stated that retirement was presented to
appellant as one of his options when the reassignment was offered to him.
The APOI denied ever discussing retirement with appellant otherwise.
The Chief, Construction and Valuation Section, (the Chief) who was then
appellant's supervisor, stated that he had discussed his own upcoming
retirement with appellant during coffee breaks. The Chief denied ever
pressuring appellant to retire.
ANALYSIS AND FINDINGS
Disability Discrimination
The threshold determination to be made is whether appellant is a
"qualified individual with disability" within the meaning of the
Rehabilitation Act.<2> The Act's implementing regulation defines a
"qualified individual with disability" as a person "who, with or without
reasonable accommodation, can perform the essential functions of the
position in question ...." 29 C.F.R. �1630.2(m).<3> If the agency can
establish that appellant poses a direct threat of substantial harm to
himself or others, then appellant is not a "qualified individual with
disability" and is not entitled to protection under the Rehabilitation
Act; the agency therefore would be relieved of the obligation of
reasonable accommodation. See 29 C.F.R. �1630.15 (b)(2). A "direct
threat" is defined as "a significant risk of substantial harm"
which cannot be eliminated or reduced by reasonable accommodation.
29 C.F.R. �1630.2(r).
As noted in the previous decision,
[A] determination as to whether an individual poses a significant risk of
substantial harm cannot be based on an employer's subjective evaluation or
speculation, but must rely on objective, factual evidence, including the
individual's experience in previous similar positions, and the opinions of
doctors, rehabilitation counselors, or physical therapists. The employer
must identify the specific risk posed by the individual, and conduct an
individualized assessment of the individual's present ability to safely
perform the essential functions of the job. In determining whether
an individual would pose a direct threat, the factors to be considered
include: (1) the duration of the risk; (2) the nature and severity
of the potential harm; (3) the likelihood that the potential harm will
occur; and (4) the imminence of the potential harm. (citations omitted)
Following the supplemental investigation, the Commission finds that
appellant posed a direct threat of substantial harm to himself or others.
The agency explained that the duties of appellant's position as a field
appraiser required appellant to spend up to 90 percent of his time "on the
road" viewing properties located throughout Northern Texas. On average,
appellant spent four to five hours per day actually behind the wheel,
logging up to 200 miles per day. Accordingly, driving is an essential
function of appellant's duties as an appraiser. Medical evidence
obtained from appellant's physician reveals that appellant's condition
is episodic and completely unpredictable, and the physician could not
ascertain the probability that appellant would or would not suffer
another spasm like the one which caused the 1993 accident, resulting
in personal injury and property damage. Further, subsequent surgery
would leave appellant at even greater risk of harm to himself if he were
involved in another accident. The agency examined several alternatives,
such as allowing appellant to ride along with other employees. However,
no alternative could be found that would allow appellant to effectively
perform the essential functions of his position without significant risk
of substantial harm to himself or others.<4> The Commission therefore
finds that appellant posed a direct threat, and that the agency was
not obligated to attempt to accommodate him in his position as a field
appraiser in the Dallas office.
Age Discrimination
Appellant's allegation that he was pressured to retire is essentially
an allegation of harassment. It is well-established that an employer
who creates or tolerates a work environment which is permeated with
"discriminatory intimidation, ridicule, and insult" that is "sufficiently
severe or pervasive to alter the conditions of the victim's employment"
is in violation of Title VII. Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986)). The conduct in question is evaluated from the standpoint
of a reasonable person, taking into account the particular context
in which it occurred. Highlander v. KFC Management Co., 805 F.2d 644
(6th Cir. 1986). Unless the conduct is very severe, a single incident
or a group of isolated incidents will not be regarded as discriminatory
treatment. Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982).
Here, appellant's allegation is unsupported by the record. Evidence of
record reveals that appellant was informed that retirement was an option
when his ability to drive became an issue in 1993. The record further
reveals that appellant's supervisor occasionally discussed his own
retirement plans with appellant during coffee breaks. The Commission
finds that this conduct, from the standpoint of a reasonable person, is
insufficient to have altered the conditions of appellant's employment,
and therefore did not constitute unlawful harassment.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. �l6l4.604(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. 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:
June 24, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1A July 18, 1996, agency memorandum in the record reflects that, contrary
to appellant's assertion, the automobile he was driving at the time of
the 1993 accident was equipped with power steering.
2There is no dispute that appellant is an "individual with disability"
within the meaning of the Act.
3Pursuant to the Rehabilitation Act Amendments of 1992, the
ADA's employment standards apply to all non-affirmative action
employment discrimination claims filed by Federal applicants or
employees with disabilities under Section 501 of the Rehabilitation
Act. Pub. L. No. 102-569 �503(b), 106 Stat. 4344 (1992) (codified as
amended at 29 U.S.C. �791(g) (1994)).
4For example, when appellant was permitted to ride along in the field with
other employees, the productivity of appellant and the other employees
fell dramatically from the levels obtained when the employees worked
independently.