01A13473
10-08-2002
Barney Smith, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Barney Smith v. Department of the Navy
01A13473
October 8, 2002
.
Barney Smith,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13473
Agency No. 99-67399-002
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 Plumber at the agency's Marine Corps Air Ground Combat Center in
Twentynine Palms, California before he retired on disability. Complainant
sought EEO counseling and subsequently filed a formal complaint on
June 28, 1999, alleging that he was discriminated against on the basis
of disability (degenerative cervical disc disease and carpal tunnel
syndrome) when he was denied reasonable accommodation and retaliated
against for requesting it. The record indicates that complainant was
also alleging he was subject to a hostile work environment. At the
conclusion of the investigation, complainant requested that the agency
issue a final decision. In its final decision, the agency found that
complainant was not a qualified individual with a disability within the
meaning of the Rehabilitation Act and that he failed to prove that the
agency's legitimate, non-discriminatory reasons for its actions towards
him were a pretext for retaliation. Neither party submitted a statement
in support of or in response to the appeal.
Turning our attention first to complainant's claim that he was denied
reasonable accommodation for his disability, we note that entitlement
to reasonable accommodation absent a showing of undue hardship by the
agency is predicated upon complainant's proof, by a preponderance of the
evidence, that he is a qualified individual with a disability within
the meaning of the Rehabilitation Act. 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.<1> 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. See Van Horn v. United States Postal
Service, EEOC Appeal No. 01960159 (October 23, 1998). When an employee
cannot perform the essential functions of his current position because
of a disability, and no accommodation is possible in that position,
reasonable accommodation includes reassignment to another position.
Ignacio v. United States Postal Service, EEOC Petition No. 03840005
(September 4, 1984), aff'd, 30 M.S.P.R. 471 (Spec. Pan. February 7,
1986).<2>
Despite the agency's attempt to modify complainant's plumbing duties
through light duty assignments, the combination of his impairments
ultimately rendered him unable to perform the essential functions of
his plumber position with or without reasonable accommodation. Since
complainant's claim is based on the assertion that he could have been
reassigned to another position, assuming arguendo that complainant was an
individual with a disability, he must present evidence sufficient to show
that more likely than not, had the agency searched at the relevant time,
it would have found a vacant, funded position for which he was qualified.
The record establishes that complainant wanted to be reassigned to
�heavy equipment,� driving a truck, but there is no evidence that he was
qualified for such a position in light of the fact that he complained
about being physically unable to drive a small �S10" truck and refused
to do so. The record also establishes that complainant was temporarily
assigned to perform unclassified duties in an office, four hours per day,
for four months, and later temporarily assigned to work as gate guard
at a landfill site, but the evidence of record does not establish that
these assignments were to vacant, funded positions. Rather, the record
suggests that complainant was given light duty clerical tasks in an office
so that he could return to work after surgery and that the gate guard
duties were usually performed by military personnel. The Commission
finds that these assignments were the result of the agency's effort to
make work for complainant. The Rehabilitation Act does not require the
agency to consider accommodating complainant's restrictions by creating
a �make work� assignment because such an assignment is not a vacant,
funded position. See Saul v. United States Postal Service, EEOC Appeal
No. 01970693 (May 10, 2001).
Agency officials represented that the only vacancies of which they were
aware existed in the Maintenance and Repair shops and that complainant's
physical restrictions prevented him from qualifying for them. Complainant
presented no evidence that he could perform the essential functions of
these positions with or without reasonable accommodation. Accordingly,
we find that complainant did not present sufficient evidence to support
a finding that there was a vacant funded position, for which he was
qualified and to which he could have been reassigned, and we therefore
affirm the agency's conclusion that complainant did not prove, by a
preponderance of the evidence, that he was a qualified individual with
a disability.
Turning to complainant's claim of retaliation, we note that complainant
alleged the agency took approximately thirteen adverse actions against him
because he requested reasonable accommodation. The agency articulated
legitimate, nondiscriminatory reasons for all of its actions, among
them that complainant was counseled because he was abusing leave and
not meeting any of his performance expectations, complainant was not
required to work outside of his medical limitations and was specifically
ordered not to do so, complainant did not have the authority to schedule
his own fitness for duty exam, that vehicles were assigned to employees
who could work out in the field, and that complainant's injury claims
were contradicted by his own behavior. The Commission finds that
complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
retaliation. In reaching this conclusion, we note that complainant's
attestations in the record concerning his restrictions and his conduct
are so contradictory as to render him a less than credible witness.
We further find that in spite of complainant's claim that these actions
constituted �cruel and unusual punishment,� under the standards set forth
in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), complainant's
claim of harassment fails since the record does not support a finding
that the agency took these actions based on complainant's prior protected
activity. Therefore, 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
October 8, 2002
__________________
Date
1 An �individual with a disability� is defined as one who: (1) has a
physical or mental impairment that substantially limits one or more
of the major life activities of such individual; (2) has a record
of such impairment; or (3) is regarded as having such an impairment.
29 C.F.R. � 1630.2(g).
2 Reassignment is the reasonable accommodation of last resort, and
should be considered only after it has been determined that there are no
reasonable accommodations that will enable the employee to perform the
essential functions of his/her current position or that any available
accommodations would result in undue hardship. Reassignment, itself,
is required only if it would be reasonable and would not impose undue
hardship.