0120090305
02-25-2013
Antonio D. Hall, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Antonio D. Hall,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120090305
Agency No. 8G0J07009L09
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented on appeal is whether Complainant established that he is an individual with a disability within the meaning of the Rehabilitation Act.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Controller Specialist (ATC), GS-13, in Radar Approach Control, (RAPCON), 14th Flying Training Wing, Operational Support Squadron (OSS) at the Agency's Air Force Base (AFB) in Columbus, Ohio. Report of Investigation (ROI), at 2. Complainant entered his position on March 19, 2006, as the result of the Department of Defense Priority Placement Program (PPP). Id. Complainant's position required him to assist pilots in landing aircraft using radar.
On March 22, 2006, Complainant received a Federal Aviation Administration (FAA) physical examination for the renewal of his class II medical certificate. Id. The physical examination revealed that Complainant had a medical condition where his body retained kidney stones. Id. The FAA medical examiner who conducted the examination medically disqualified Complainant from his ATC Specialist position. Id.
On July 12, 2006, Complainant's supervisors and Columbus AFB Human Resources (HR) transferred him to work as an Airspace Manager, GS-13, in the Airspace Management Office, hoping that his medical condition would improve. Id. On September 6, 2010, the FAA Southern Region Flight Surgeon of Aerospace Medicine confirmed Complainant's medical disqualification. Id. Complainant continued to perform the duties of an Airspace Manager while Columbus AFB HR and Complainant's supervisors considered what appropriate steps to take next. Complainant's third-level supervisor (S3) attempted to make Complainant's Airspace Manager position permanent, but was unable to obtain the necessary funding from the Agency. Id. at 8.
Columbus AFB HR and Complainant's supervisors subsequently attempted find Complainant another position, but there were reportedly no vacant GS-13 positions at the Columbus AFB. Id. at 6. A Columbus AFB Supervisory Human Resources Specialist (HR1) asked that personnel offices search for ATC positions at other Air Force bases, but was unsuccessful. Id. at 5. Columbus AFB HR asked the personnel office at Headquarters Air Education and Training Command (HQ AETC) at Randolph AFB for placement for Complainant. Id. at 6. However, Complainant was not placed in a position. Id.
On February 13, 2007, a Columbus AFB Human Resources Specialist (HR2) received an e-mail from the HQ AETC. The email noted that Complainant:
Can be reassigned to another position or he can request a change-to-lower grade (CLG) to another position . . . . If there are no positions to move him into, [you] . . . should pursue separation, medical retirement, or discontinued service retirement. The suggested timeframe to look for vacant positions is 90-120
days . . . .
ROI, Ex. F-3, at 58.
Complainant indicated that he would not accept a GS-12 position and wanted reassignment to another AFB if no GS-13 position was available at the Columbus AFB. ROI, at 5. On April 20, 2007, HR1 sent the HQ AETC a memorandum, asking for assistance in finding Complainant another position. ROI, Ex. F3, at 62. HR2 also e-mailed the HQ AETC on April 20, 2007, requesting help in placing Complainant. ROI, Ex. F3, at 65. The HQ AETC responded that it does not conduct command-wide searches, and referenced the e-mail it sent on February 13, 2007. Id. Thereafter, on April 23, 2007, HR1 and HR2 met with Complainant, advising Complainant that the Agency could no longer retain him, and that he had 90 days to find another position, apply for retirement, or he would be terminated. ROI, Ex. F-7, at 129.
On July 7, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when he did not receive assistance from the Agency's Civilian Personnel Office in reassigning him to another position for which he was qualified at his current grade and rate of pay. ROI, Ex. A, at 2-4.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency found that Complainant failed to establish a prima facie case of disability discrimination. Specifically, the Agency noted that Complainant declared that his condition did not limit him in any major life activity. The Agency found that Complainant was not substantially limited in the major life activity of working. In particular, the Agency noted that although Complainant's medical condition prevented him from working as an ATC Specialist, GS-13, at the Columbus AFB, he worked as an Airspace Manager and as an ATC Controller at the Andrews AFB. The Agency found that Complainant failed to establish that his medical conditions substantially limit him in any major life activities. The Agency therefore found that Complainant was not an individual with a disability within the meaning of the Rehabilitation Act. The Agency further noted that Complainant did not provide any evidence that he had a record of a disability within the meaning of the Rehabilitation Act. The Agency consequently found that Complainant was not entitled to protection under the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency should have conducted an agency-wide search for another position for him. Complainant contends that he identified and obtained his position at Andrews AFB without the assistance of the Agency's personnel office. In response, the Agency reiterates its findings in its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Reasonable Accommodation
Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities, unless an Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p).
To establish that she was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a "qualified" individual with a disability, pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002) ("Enforcement Guidance on Reasonable Accommodation").
Individual with a Disability
This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006-2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability."
Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must establish that he is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of his major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. � 1630.2(j). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. � 1630.2(j).
Here, as noted in the Agency's decision, Complainant stated in his declaration that he believes his impairment does not restrict a major life activity. ROI, Ex. F-8, at 290. Therefore, although Complainant failed to establish that he has an impairment that substantially limits a major life activity, or that he has a record of such an impairment,1 he might still establish that he is an individual with a disability under the third part of the definition, i.e., that the agency regarded him as substantially limited in a major life activity.
However, even assuming that the Agency regarded Complainant as being substantially limited in a major life activity, we have held that an individual who is regarded as substantially limited in a major life activity, rather than actually limited, is not entitled to a reasonable accommodation. See Boozer v. U.S. Postal Serv., EEOC Appeal No. 0120082990 (Apr. 14, 2009); Baldassarre v. U.S. Postal Serv., EEOC Appeal No. 01A05157 (June 6, 2003); Howard v. Dep't of the Air Force, EEOC Appeal No. 01931905 (May 12, 1994). Accordingly, Complainant failed to establish that the Agency discriminated against him based on disability.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 25, 2013
Date
1 A person has a record of a disability when they have a hospital or other record documenting a substantially limiting impairment or a misclassification of such an impairment. See Ayers v. U.S. Postal Serv., EEOC Appeal No. 01975550 (Feb.25, 2000) (citing School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987)).
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0120090305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090305