0120080156
08-08-2012
Avelino Abeijon, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Avelino Abeijon,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120080156
Hearing No. 510-2007-00119X
Agency No. HS06CBP01282
DECISION
On October 10, 2007, Complainant filed an appeal from the Agency's September 13, 2007 final order 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 following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order.
ISSUES PRESENTED
The issues presented are:
1. whether the EEOC Administrative Judge (AJ) erred in issuing a decision without a hearing fully in favor of the Agency;
2. whether the AJ erred in finding that Complainant was not a qualified individual with a disability because (a) Complainant's medical documentation did not indicate that his herniated discs and nerve damage were permanent conditions; (b) Complainant was unable to perform the essential functions of his current position of a Customs and Border Protection Officer;
3. whether the AJ erred in determining that the Agency reasonably accommodated Complainant after March 13, 2006 when it restructured his job duties instead of granting his request to be reassigned to a light duty administrative position;
4. whether the Agency failed to demonstrate a good faith effort in consulting with Complainant and attempting to identify and make reasonable accommodations, and therefore is liable for compensatory damages.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer, GS-1895-11, at the port of entry in Fort Lauderdale, Florida. Customs and Border Protection Officers perform a range of activities relating to the arrival and departure of people and merchandise at ports of entry, including inspection, intelligence analysis, examination, and law enforcement.
Major duties include primary examination and secondary examination. Primary examinations involve questioning and visually examining travelers to determine admissibility or the need for further inspection. Secondary examinations involve intensely inspecting people, cargo, or conveyances through interviews, document reviews, additional database queries, and other examination techniques. All Customs and Border Protection Officers are required to carry firearms and be proficient in the use of firearms and non-deadly force to protect and defend lives.
On January 30, 2006, Complainant sustained a work-related injury to his back. Complainant saw a doctor on February 1, 2006 and received a preliminary diagnosis on February 3, 2006. Based on the preliminary diagnosis, Complainant verbally requested that the Agency provide him with the reasonable accommodation of reassignment to light duty on February 3, 2006.
But when Complainant returned to work, the Agency had him perform inspections at the airport and on cruise ships that had incline ramps. After Complainant informed his supervisor that he was still experiencing pain when conducting cruise ship inspections, the Agency assigned Complainant to work in an airport passport control area, where Complainant performed the major duties of primary examination and secondary examination, albeit without having to do strenuous activities, such as lifting, kneeling, or bending. Complainant sat in a booth and inspected passenger documents to determine admissibility into the United States. In addition, Complainant processed the paperwork of travelers to be removed. These assignments were not considered light duty by the Agency because they required Complainant to wear his weapon and gear belt. Light duty requires officers to turn in their firearms.
In a letter dated February 24, 2006, an orthopedic surgeon diagnosed Complainant with severe back pain syndrome, lumbosacral somatic dysfunction, and lumbar radiculopathy, but ruled out a herniated lumbar disc. The surgeon warned Complainant to be very careful with the use of his spine and recommended restricting his activities until Magnetic Resonance Imaging (MRI) could be performed on the lumbar spine.
When the MRI results came back, the surgeon's prognosis for Complainant's back injury worsened. Complainant's orthopedic surgeon wrote in a March 13, 2006 letter that Complainant had a herniated disc. The surgeon suggested that Complainant be put on permanent disability and avoid bending, kneeling, squatting, climbing, lifting more than ten pounds, and prolonged standing. The surgeon opined that Complainant should never again perform work that would put him in harm's way, and advised that Complainant needed to avoid physical altercations.
On March 13, 2006, Complainant verbally requested to be reassigned to a light duty position. For the next two weeks, Complainant claimed Continuation of Pay (COP), in which the Agency paid Complainant his regular pay while he sought medical treatment.
On March 27, 2006, the orthopedic surgeon wrote that Complainant wished to return to work on a light duty basis. On March 31, 2006, the orthopedic surgeon wrote that Complainant had been advised to undergo spinal surgery. In addition, the surgeon wrote, "I have suggested that [Complainant] needs a special chair with a low back support so that [Complainant] can continue working."
Complainant returned to work on April 4, 2006, when he again requested to be reassigned to light duty. In addition, he requested that the Agency provide him with a special chair for lower back support. Complainant's supervisor forwarded Complainant's request for a chair to another Agency official to find out whether the Office of Workers' Compensation Programs would pay for the chair.
On April 28, 2006, the orthopedic surgeon wrote that Complainant "should be on light duty with no squatting, climbing, lifting, or bending. He should not stand or sit for long periods of time."
On May 4, 2006, an Agency official spoke with an OWCP claims examiner, who informed the Agency official that the special chair would have to be provided by the Agency, not OWCP. This Agency official then advised Complainant's supervisor that Complainant's doctor would first have to provide a prescription with more specific information on what type of chair was needed.
On May 10, 2006, the Port Director requested supporting medical documentation for Complainant's request for accommodation of light duty because present documentation on file was deemed insufficient. On May 11, 2006, the Port Director asked for a prescription for the special chair. Around this time, a lumbar support chair became available because the chair's previous occupant, a Customs and Border Protection Officer who had been placed at a seaport on light duty, had left.
On or about May 14, 2006, the Agency placed Complainant at the seaport on light duty, in which he performed administrative work, such as filing and doing reports, and was required to turn in his firearm. On May 15, 2006, Complainant's supervisor advised Complainant that he could not attend Anti-Terrorism training because such training was not appropriate for an employee who was presently assigned to administrative duties and had already surrendered his weapon. On May 18, 2006, the Agency provided Complainant with the lumbar support chair that had recently been vacated by the departing officer.
On May 26, 2006, the orthopedic surgeon wrote that Complainant had applied for disability retirement.
On June 2, 2006, Complainant filed an EEO complaint alleging that he was discriminated against on the basis of disability (herniated discs and nerve injuries) when, from February 2006 to May 2006, the Agency unduly delayed in granting his reasonable accommodation requests for light duty and a lumbar support chair. In addition, the complaint was later amended to include an allegation of discrimination on the basis of reprisal for prior EEO activity when, on May 15, 2006, the Agency denied Complainant the opportunity to attend the Anti-Terrorism Passenger training.
Complainant retired in November 2006.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 14, 2007 motion for a decision without a hearing and issued a decision without a hearing on August 8, 2007.
The AJ found that Complainant failed to establish that he was a qualified individual with a disability because (1) at the time of the Agency's actions, there was no evidence that Complainant's medical condition was permanent, and (2) Complainant was unable to perform the essential functions of the position, with or without an accommodation.
Even if Complainant were a qualified individual with a disability, the AJ found that Complainant was not denied a reasonable accommodation in his job assignment. Although the Agency did not initially provide Complainant with his desired assignment of light duty, the AJ found that the Agency reasonably accommodated Complainant by initially assigning him to the airport passport area, where his duties comported with the physical restrictions articulated by his surgeon. The AJ also found that the Agency did not unduly delay in providing Complainant with a lumbar support chair because the Agency engaged in the interactive process by consulting with the Department of Labor.
Finally, the AJ found that Complainant failed to establish discrimination on the basis of reprisal for prior EEO activity when the Agency denied him the opportunity to attend training because there was no evidence that management was aware that Complainant had sought EEO counseling at the time. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing because there was a genuine dispute over whether the Agency's initial assignment of Complainant to primary examination and secondary examination, rather than to light duty administrative work, constituted a reasonable accommodation.1 In addition, Complainant maintains that the AJ erred in issuing a decision without a hearing because there was a genuine dispute over whether the Agency failed to provide a reasonable accommodation when it denied Complainant the opportunity to attend the Anti-Terrorism Passenger training.2
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision, the Commission reviews de novo the AJ's legal and factual conclusions, and the Agency's final order adopting them. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). The Commission is free to accept (if accurate) or reject (if erroneous) the factual conclusions and legal analysis of the AJ and Agency. See id. at Chapter 9, � VI.A. (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").
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether the AJ appropriately issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when the AJ 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, the Commission finds that the AJ did not err in issuing a decision without a hearing on this record. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he responded to the motion, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. We find that no genuine issues of material fact exist. However, the Commission finds that the AJ did err in issuing a decision fully in favor of the Agency.
Workers' Compensation and the Rehabilitation Act
Under the Rehabilitation Act, federal agencies are prohibited from discriminating against qualified individuals because of disability in all aspects of employment. In contrast, the purpose of workers' compensation law is to provide a system for securing prompt and fair settlement of employees' claims against employers for occupational injury and illness. While the purposes of the two laws are not in conflict, the simultaneous application of the laws can raise issues about light duty3 and reasonable accommodation for persons with disability-related occupational injuries. See EEOC Enforcement Guidance: Workers' Compensation and the ADA, EEOC Notice No. 915.002 (September 3, 1996) ("Workers' Compensation and the ADA").
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 he 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").
1. 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 2003, 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).
The AJ found that Complainant failed to show that he was an individual with a disability under the Rehabilitation Act because there was no evidence that Complainant's medical condition was permanent at the time of the Agency's actions.4
Upon review, the Commission determines that the AJ erred in finding that Complainant was not an individual with a disability. Although very short-term, temporary restrictions generally are not substantially limiting, impairments do not have to be permanent to rise to the level of a disability. Temporary impairments that take significantly longer than normal to heal, long-term impairments, or potentially long-term impairments of indefinite duration may be disabilities if they are severe. See Executive Summary: Compliance Manual Section 902, Definition of the Term "Disability."
The record includes sufficient medical documentation to conclude that Complainant was an individual with a disability, that is, Complainant's back impairment (herniated disc) from an occupational injury was severe enough to substantially limit the major life activities of sitting, standing, and lifting, and the impairment should, at the very least, be deemed chronic.
The record includes a March 13, 2006 letter by Complainant's orthopedic surgeon. In this letter, the orthopedic surgeon determined that Complainant had a herniated disc, suggested that Complainant be on "permanent disability," and opined that Complainant should never "go back to work that would put him in harms way." In this same letter, the orthopedic surgeon further wrote that Complainant should avoid bending, kneeling, squatting, climbing, lifting more than ten pounds, and prolonged standing. In a March 27, 2006 letter, the orthopedic surgeon reiterated that he told Complainant he had a "permanent injury," and that Complainant should avoid bending, kneeling, squatting, climbing, lifting more than ten pounds, and prolonged standing. In an April 26, 2006 letter, the orthopedic surgeon reported that Complainant "continues to have problems with his back due to his spine injury," and that Complainant should not squat, climb, lift, bend, or sit or stand for long periods of time. In a May 22, 2006 letter, the orthopedic surgeon expressed his belief that Complainant had "permanent injuries in the lower back."
The Commission finds that the record contains several letters from Complainant's orthopedic surgeon describing the severity and long-term nature of Complainant's back impairment during the time when Complainant requested reassignment to light duty. Therefore, the Commission finds that the AJ erred in determining that Complainant was not an individual with a disability.
2. Qualified Individual with a Disability
After Complainant has shown that he is an individual with a disability, the Complainant must then establish that he is a "qualified individual with a disability," an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
In analyzing whether an employee who requests reassignment as a reasonable accommodation is a qualified individual with a disability, the fact-finder must determine whether the employee (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation at 40.
The AJ found that Complainant was not a qualified individual with a disability because he was unable to perform the essential functions of a law enforcement officer, with or without a reasonable accommodation.
The Commission determines that the AJ erred in finding that Complainant was not a qualified individual with a disability simply because he was not able to perform the essential functions of his current position as a law enforcement officer, with or without a reasonable accommodation.
The Commission has previously noted that it is erroneous for a fact-finder to find that an employee who is unable to perform the essential functions of his current position is unqualified to receive a reassignment, because such a finding would nullify Congress' inclusion of reassignment in the American with Disabilities Act. Id. at 39 n.77. In other words, reassignment must be provided as a reasonable accommodation to an employee who, because of a disability, can no longer perform the essential functions of his current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship. Id. at 39.
Here, the record includes letters from Complainant's orthopedic surgeon, asking that Complainant be reassigned to light duty. The orthopedic surgeon reiterated several times his belief that, because of Complainant's back impairment, Complainant should never again work in a position that would put him in harms way and subject him to the risk of physical altercations with others.
The Commission finds that there is sufficient evidence in the record, in the form of letters from Complainant's orthopedic surgeon, to conclude that Complainant was a qualified individual with a disability because, while he was no longer able to perform his current position's essential function of using non-deadly force to protect and defend his own life and the lives of others, he could perform the essential functions of the new, light duty position, which consisted only of administrative work and did not require Complainant to use firearms or non-deadly force to protect lives.
3. Reasonable Accommodation
Once a Complainant has demonstrated that he is a qualified individual with a disability, the Complainant must then establish that the Agency failed to provide a reasonable accommodation. Generally, a Complainant with a disability must request a reasonable accommodation by letting the employer know he needs an adjustment or change at work for a reason related to a medical condition. See Enforcement Guidance on Reasonable Accommodation at 8. After receiving a request for reasonable accommodation, the employer should engage in an informal process with the individual with a disability to clarify what the individual needs and identify the appropriate reasonable accommodation. Id. at 11. If an employee with a disability-related occupational injury requests reasonable accommodation and the need for accommodation is not obvious, the employer may require reasonable documentation of the employee's entitlement to reasonable accommodation. While the employer may require documentation showing that the employee has a covered disability and stating his functional limitations, the employer is not entitled to medical records that are unnecessary to the request for reasonable accommodation. See Workers' Compensation and the ADA, Question 9
A modification or adjustment is reasonable if it appears to be feasible or plausible. The employer may choose among reasonable accommodations as long as the chosen accommodation enables the individual with a disability to perform the essential functions of his or her job. See Enforcement Guidance on Reasonable Accommodation, Question 32. An employer need not provide an employee's preferred accommodation as long as the employer provides one that is sufficient to meet the employee's job-related needs. Workers' Compensation and the ADA, Question 24.
But when an employee can no longer perform the essential functions of his original position, with or without a reasonable accommodation, because of a disability-related occupational injury, an employer must reassign him to an equivalent vacant position for which he is qualified, absent undue hardship. If no equivalent vacant position (in terms of pay, status, etc.) exists, then the employee must be reassigned to a lower graded position for which he is qualified, absent undue hardship. Workers' Compensation and the ADA, Question 22.
a. Reassignment to Light Duty
Complainant contends that he requested to be reassigned to light duty as a reasonable accommodation on February 3, 2006, March 13, 2006, and April 4, 2006. He argues that the Agency's attempts at accommodation, restructuring his job to include only the major duties of primary examination and secondary examination at the airport passport control area, were not appropriate because his back impairment rendered him unable to perform the essential function of protecting and defending lives using non-deadly force, if necessary. Because Complainant was unable to perform this essential function, the Agency should have granted at the outset his request for reassignment to light duty, in which Complainant would perform only administrative tasks. Instead, according to Complainant, the Agency unduly delayed in reassigning him to light duty until May 2006, months after his first request on February 3, 2006 and approximately a month after his April 4, 2006 request.
The AJ found that the Agency reasonably accommodated Complainant when it restructured his job because his duties involving primary and secondary examination were within the physical restrictions outlined by Complainant's orthopedic surgeon. The Commission finds that the AJ erred in determining that the Agency reasonably accommodated Complainant after March 13, 2006 when it restructured his job to include only primary and secondary examination duties.
When Complainant first requested to be reassigned to light duty in February 2006, his physician and orthopedic surgeon had not yet diagnosed Complainant with a herniated lumbar disc and only warned him to be very careful with the use of his spine and recommended restricting his activities. As a result, the Commission finds that the Agency met Complainant's restrictions in February 2006 when it restructured his job to performing non-strenuous primary and secondary examinations at the airport passport control area.
But on March 13, 2006, the restrictions changed. In a March 13, 2006 letter, the orthopedic surgeon diagnosed Complainant with a herniated disc, cautioned that he should never again perform work that would put him in harm's way, and opined that he needed to avoid physical altercations.
Although the Agency appropriately restructured Complainant's day-to-day activities so that he did not need to bend, kneel, squat, climb, lift more than ten pounds, or stand for a prolonged period of time, the Agency did not accommodate Complainant's restriction of avoiding physical altercations and being put in harm's way. Complainant still functioned as a Customs and Border Protection Officer in the airport passport control center and, as per the position description, was still required to protect and defend his own life and the life of others by carrying a firearm and using that firearm and non-deadly force, if necessary. If the function of carrying a firearm and protecting the lives of others was not essential (i.e., it could have been modified), the Agency should have eliminated it from the restructured job. If the function was essential, Complainant was unqualified for the position and should have been transferred to a light duty position. Therefore, the Commission finds that there is sufficient evidence in the record to conclude that the Agency did not reasonably accommodate Complainant's March 13, 2006 and April 4, 2006 requests for light duty when the Agency kept him at the airport passport control area because the Agency did not meet Complainant's restrictions of avoiding physical altercations and being put in harm's way.
b. Denial of Training
Complainant contends that the Agency failed to reasonably accommodate him when it denied him the opportunity to attend an anti-terrorism inspection training class on March 15, 2006.5 The Commission finds that the AJ did not err in dismissing this claim because it was first raised in Complainant's opposition to the Agency's motion for summary judgment. Even assuming, arguendo, that the claim was timely raised, the Commission finds that the AJ did not err in determining that the Agency did not have to provide inspection training for Complainant, who was currently performing only administrative duties.
4. Liability for Compensatory Damages
We turn now to the matter of the relief to be afforded to Complainant, which included requests for compensatory damages. Under section 102 of the Civil Rights Act of 1991, compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. However, this section also provides that an Agency is not liable for compensatory damages in cases of disability discrimination where the Agency demonstrates that it made a good faith effort to accommodate the Complainant's disability.
An Agency can demonstrate a good faith effort by proving that it consulted with the individual with a disability and attempted to identify and make a reasonable accommodation. Schauer v. Social Security Administration, EEOC Appeal No. 01970854 (July 13, 2001); compare Luellen v. United States Postal Service, EEOC Appeal No. 01951340 (December 23, 1996) (Agency demonstrated good faith effort where it consulted with c1/17omplainant and her physicians in attempting to identify a reasonable accommodation, despite the fact that these efforts were not sufficient to afford Complainant a reasonable accommodation); Morris v. Department of Defense, EEOC Appeal No. 01962984 (October 1, 1998) (Agency did not make a good faith effort to identify and provide a reasonable accommodation for complainant where it did not make any attempt to find an available office position for complainant in spite of his repeated requests.) (citation omitted).
With respect to Complainant's requests for reassignment to light duty, the Commission finds that the Agency demonstrated a good faith effort by consulting with Complainant and attempted to identify and make a reasonable accommodation. Specifically, the Agency restructured Complainant's duties, in February 2006, after he notified the Agency of his pain when he walked on incline ramps while inspecting cruise ships. The Agency attempted to restructure his day-to-day duties at the airport passport area so that he would not have to do any strenuous physical activities.
Accordingly, the Commission finds that the Agency demonstrated a good faith effort in accommodating Complainant and is therefore not liable for compensatory damages.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS in part the Agency's final order with respect to (1) Complainant's February 3, 2006 request for reassignment to light duty, (2) Complainant's April 4, 2006 request for a lumbar support chair, and (3) Complainant's reasonable accommodation and reprisal claims relating to the Agency's denial of training on May 15, 2006. The Commission REVERSES in part the Agency's final order regarding Complainant's March 13, 2006 and April 4, 2006 requests for reassignment to light duty. The Agency must to take remedial action in accordance with this decision and the ORDER below.
ORDER (C0900)
The Agency is ordered to take the following remedial action:
1. The Agency shall provide training to the Assistant Port Director for Passenger Operations, Port Everglades, Fort Lauderdale, Florida in the Agency's duties and obligations pursuant to the Rehabilitation Act.
2. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against the Assistant Port Director for Passenger Operations, Port Everglades, Fort Lauderdale, Florida. The Commission does not consider mandatory training to constitute disciplinary action. If the Agency decides to take disciplinary action, it shall identify in its compliance report the action taken. If the Agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for its decision not to impose discipline.
3. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Port of Entry in Fort Lauderdale, Florida facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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 (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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
___8/8/12_______________
Date
1 On appeal, Complainant does not challenge the AJ's finding that there was no undue delay in providing Complainant with a lumbar support chair on May 18, 2006, approximately six weeks after Complainant requested such a chair on April 4, 2006. The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address this matter in this decision. Nevertheless, we briefly take issue with the Agency's contention that it properly engaged in the interactive process when it asked the Department of Labor to pay for the lumbar support chair. The interactive process involves the Agency and the individual with a disability, not the Agency and another federal agency. After receiving a request for reasonable accommodation, the Agency should engage as quickly as possible in an informal process with the individual with a disability to clarify what the individual needs and identify the appropriate reasonable accommodation. Where a reasonable accommodation can be provided without undue hardship to the Agency, the Agency should then act promptly to provide the reasonable accommodation, which may require seeking the appropriate reimbursements at a later time. See Enforcement Guidance on Reasonable Accommodation, Question 10.
2 In Complainant's opposition to summary judgment, Complainant argued that the Agency's denial of training was a denial of a reasonable accommodation. In issuing a decision without a hearing, the AJ found that Complainant had failed to timely raise this reasonable accommodation issue. Even if this claim had been timely raised, the AJ nevertheless found that the Agency's denial of training did not constitute a failure to provide a reasonable accommodation because the Agency was not required to provide law enforcement training for an employee who was only performing administrative duties at the time.
3 The term "light duty" has a number of different meanings in the employment setting. Generally, "light duty" refers to temporary or permanent work that is physically or mentally less demanding than normal job duties. Some employers use the term "light duty" to mean simply excusing an employee from performing those job functions that the employee is unable to perform because of an impairment. "Light duty" also may consist of particular positions with duties that are less physically or mentally demanding created specifically for the purpose of providing alternative work for employees who are unable to perform some or all of their normal duties. Further, an employer may refer to any position that is sedentary or is less physically or mentally demanding as "light duty." EEOC Enforcement Guidance: Workers' Compensation and the ADA, EEOC Notice No. 915.002 (September 3, 1996) ("Workers' Compensation and the ADA").
4 Impairments resulting from occupational injury may not be severe enough to substantially limit a major life activity, or they may be only temporary, non-chronic, and have little or no long-term impact. See Workers' Compensation and the ADA, Question 1.
5 On appeal, Complainant does not challenge the AJ's finding that the Agency did not retaliate against him when it denied him training. He only challenges the AJ's determination that the denial of training did not constitute a denial of a reasonable accommodation. Therefore, we exercise our discretion to not address the AJ's finding with respect to the retaliation claim, since Complainant did not specifically raise this issue on appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20013
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