EEOC Appeal No. 0120131989
10-26-2016
Bill A. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Bill A.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120131989
Hearing No. 420-2013-00006X
Agency No. ARANAD11NOV04712
DECISION
Complainant timely filed an appeal from the Agency's final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and 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 VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether there are genuine issues of material fact that require a hearing on Complainant's claims that the Agency discriminated against him on the bases of race and disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Welder, WG-10, at the Agency's Anniston Army Depot, Vehicle Welding Branch No. 1, in Anniston, Alabama. Report of Investigation (ROI), at 10, 16.2 As a civilian night-shift Welder with the Army, Complainant worked on the parts, hulls, and chassis of the M88 HERCULES recovery vehicle and the M1 Abrams battle tank, among other Army vehicles. Id. at 196, 466, 539.
The Position Description (PD) for Complainant's WG-10 Welder position states that the position's major duties are "general welder duties using electric, acetylene, and/or inert gas shielded welding processes." Id. 182. The job involves "standing, stooping, bending, kneeling, climbing, and crawling, [and] occasionally work is performed in awkward and hard to reach places." Id. at 183. According to the PD, the work includes frequently lifting items weighing 15 to 40 pounds and occasionally lifting items over 45 pounds. Id. The PD indicates that the duties are hazardous and specifically notes the "possibility of eye injury, electrical shock, broken bones, and the chance of cuts when working with sharp objects . . . ." Id.
Complainant sustained an injury to his lower back on September 16, 2007, while performing his job duties. Id. at 21. He returned to work after a few weeks of treatment and rehabilitation. Id. Subsequently, on December 22, 2010, Complainant re-injured his lower back at work. Id. Complainant's doctor thereafter diagnosed him with lumbar disc degeneration disease. Id. at 237, 338, 615. In a January 8, 2011, medical document, Complainant's doctor released him to return to work with the following restrictions: no lifting items over 15 pounds, no bending, and no stooping. Id. at 89.
As a result of his restrictions, as of January 2011, management no longer allowed Complainant to perform his welding duties and placed him in the break room. Although Complainant continued to receive his salary, he no longer received overtime and hazard pay as he did before he re-injured his back. Id. at 10. According to Complainant, he sat in the break room for two years, assigned to menial tasks that included sweeping, folding clothes, cleaning windows, removing rainwater, and reading books. Id. at 21. Complainant averred that he would come to work every night at 8:30 p.m., and after a safety briefing would simply sit in the break room doing nothing until it was time to leave work at 6:00 a.m. Id. at 457-58. He was distraught because of his lengthy assignment to the break room. Id. at 463-64.
Medical documents described Complainant's restrictions for the period February through May 2011 as no stooping and no lifting more than 15 pounds. Id. at 105, 110, 113, 116. Complainant's doctor prohibited Complainant from bending, stooping, and lifting more 15 pounds from May 31 through August 29, 2011. Id. at 119, 135, 138, 140. On September 12, 2011, Complainant's doctor restricted Complainant from lifting more than 15-20 pounds, id. at 97, and, on October 11, 2011, the doctor updated Complainant's physical work restrictions to no stooping, no bending, and no lifting items greater than 10 pounds, id. at 125. On November 1, 2011, another doctor wrote that Complainant was treated for Post-Traumatic Stress Disorder (PTSD) and recommended that he be allowed to take three weeks of sick leave to help alleviate his stress. Id. at 247. Complainant, a veteran, had a history of PTSD and stated that his assignment to the break room aggravated his PTSD. Id. at 21.
Complainant contacted an EEO Counselor on November 10, 2011, to allege that the Agency was discriminating against him. On February 14, 2012, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and disability when:
1. on November 10, 2011, his physical restrictions allowed him to perform the essential functions of his job, but management placed him on another set of duties in the break room; and
2. he missed out on overtime (OT), additional hazard-duty pay, and possible opportunities afforded to his coworkers when management did not assign him to Welding Components.3
Subsequently, on March 19, 2012, Complainant submitted a Confirmation of Request for Reasonable Accommodation form to the Agency's Disability Program Manager. He asked the Agency to accept his physician's recommendation that he return to work with restrictions. In addition, Complainant stated that, if the Agency reassigned him, he preferred to be assigned to the Component Parts section. Id. at 168-69.
According to a July 6, 2012, Functional Capacity Evaluation (FCE), Complainant could work at a "medium physical demand level with sustain[ed] lifts of 22 [pounds] floor to waist and 15 [pounds] waist to eye." The FCE included a statement that Complainant could engage in occasional crouching, stooping, bending, kneeling, crawling, and ladder-climbing. Id. at 163.
During the August 7, 2012, Fact-Finding Conference conducted by the EEO Investigator, Complainant asserted that he could perform the essential functions of his Welder position with or without reasonable accommodation. Id. at 455. In addition, he alleged that the Agency treated Caucasian Welders who were similarly injured more favorably than it treated him. Id. at 458-59. He specifically named five Caucasian Welders who, according to Complainant, were also injured, but spent only days in the break room before their positions were modified to accommodate them. Complainant averred that these Caucasian Welders, unlike him, continued to receive overtime and hazard pay even though they had injuries. He specifically indicated that one of the identified Welders (CW1) broke his foot and had medical restrictions but still was allowed to work overtime and receive hazard pay while injured. Id. at 478-79. Complainant identified a second Caucasian Welder (CW2) who broke his leg but allegedly was allowed to work and receive overtime while injured. Id. at 479. He stated that a third Welder (CW3) sustained a head injury but still was allowed to work overtime. Id. The fourth Welder (CW4) identified by Complainant reportedly sustained a neck and shoulder injury but continued to work while injured and to receive overtime and hazard pay . Id. at 479-80. The fifth Caucasian Welder (CW5), according to Complainant, sustained a lower back injury and had the same medical restrictions as Complainant but was allowed to continue to work as a Welder and to receive overtime and hazard pay. Id. at 477.
According to Complainant's first-level supervisor (S1) and Complainant's Division Chief (S2), they decided to assign Complainant to the break room because he could no longer perform the essential functions of his Welder position with or without a reasonable accommodation. Id. at 499-500, 512, 536, 540-41. S1 averred that Complainant could no longer meet the physical demands of the position due to his medical restrictions. S1 stated that the Welder position required bending, stooping, kneeling, and crawling, which Complainant's restrictions prevented. Id. at 498. He asserted that he could not have modified the position's duties to enable Complainant to perform the position's essential functions. Id. at 498-99. S2 indicated that Complainant even had trouble folding clothes (coveralls) due to his back injury. Id. at 538, 547. S1 averred that CW5 and two other injured Welders also were assigned to the break room at one time or another. Id. at 516-17.
S1 testified that the Welders who were injured were treated differently from the way that Complainant was treated because they had different injuries and restrictions. Id. at 506, 515. He denied that CW5 was treated any differently than Complainant. Id. at 502.
The Welder Leader explained that, although CW5 initially was assigned to the break room, he later was allowed to resume his duties as a Welder because his restrictions changed. Id. at 560-61. The Welder Leader further indicated that Welders who sustained injuries were reassigned to a "Welding Components" section. Id. at 562. Complainant believed that he could physically perform the duties in Welding Components. Id. at 466.
S1 stated that he contacted the Selective Placement Coordinator to start the process for finding Complainant another position. Id. at 523. According to the Agency's Reasonable Accommodation Process Policy, the Selective Placement Coordinator is responsible for reviewing "vacancy listings to determine presence of funded vacancies for reassignment." Id. at 334. During the Fact-Finding Conference, the Selective Placement Coordinator stated that she received a copy of Complainant's FCE on August 1, 2012, and that Complainant was eligible for selective placement. Id. at 584-85. She also stated that Complainant's supervisor needed to submit a memorandum indicating that Complainant could not be accommodated in his current position and asking her to find another position for Complainant. Id. at 585. According to the Coordinator, Complainant's supervisor had not yet submitted the memorandum. Id. The Coordinator, who likewise had not yet sent a memorandum to Complainant's managers, stated that she would do so soon. Id. at 586.
The Disability Program Manager stated that, after she received Complainant's reasonable-accommodation request, she forwarded the document to Complainant's supervisor. She also stated that the Agency accommodated Complainant by placing him in a light-duty position. Id. at 576-78.
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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing.
On January 10, 2013, the Agency submitted a motion for a decision without a hearing. Complainant submitted a response in objection to the Agency's motion on January 31, 2013. The AJ issued a decision without a hearing on March 4, 2013. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the AJ found that Complainant did not establish a prima facie case of discrimination based on either race or disability under a disparate-treatment theory. The AJ concluded that the evidence did not establish that Complainant was treated less favorably than a similarly-situated employee outside of his protected classes. In that regard, the AJ found that other employees were treated differently because their medical restrictions were different from Complainant's. The AJ additionally found that Complainant was an "individual with a disability" and that the Agency fulfilled its reasonable-accommodation obligations under the Rehabilitation Act. The AJ noted that, when Complainant could no longer perform the essential functions of the Welder position, he was assigned to work in the break room. The AJ concluded that Complainant's restrictions prevented him from being assigned to an area where overtime and hazardous work were available. While stating that he was not assessing Complainant's credibility, the AJ found that Complainant's testimony contradicted his assertion that he could perform the essential functions of his position. In that regard, the AJ found that the position required stooping, kneeling, pushing, squatting, and lifting and that Complainant acknowledged that he could not perform those activities with regularity.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, argues that the AJ erroneously granted the Agency's motion for a decision without a hearing. He contends that the investigative record was not fully developed and that there were genuine issues of material fact. He also contends that he established a prima facie case of disparate treatment and demonstrated that the Agency's reasons for not restructuring his position were a pretext for discrimination.
Complainant asserts that the Agency forced him to sit in the break room for two years with no work to do. He claims that, after he returned to work and requested accommodation, from January 2011 through December 2012, he sat in the break room doing nothing during his nine-hour shifts. Complainant states that he submitted affidavits from ten coworkers corroborating that he was given no work while he sat in the break room during his work shifts. He cites to a previous statement that he made for the record:
If you can imagine yourself sitting isolated in a room all alone by yourself nine and a half, maybe ten hours a night, I mean, and doing absolutely nothing, to me it's pretty much inhumane and I think it's a total disregard for the management of [the Agency] to let a person sit in a break room and do absolutely nothing for 18 almost 20, maybe 24 months. That's almost two years of doing absolutely nothing . . . . To me, it was like checking yourself in jail.
Complainant also asserts that 40 percent of his salary came from overtime benefits, which he no longer received after his placement in the break room. He argues that "the Agency could have restructured [his] position to a position that would allow him to earn overtime benefits."
Complainant additionally argues that the AJ erred in finding that he did not identify a similarly-situated Caucasian employee who was treated more favorably. He maintains that similarly-situated Caucasian employees were accommodated with restructured positions that permitted them to receive overtime and hazard pay. Complainant asserts that these individuals had restrictions similar to his but were given restructured positions. Noting that the EEO Investigator did not obtain specific information about the Caucasian comparators' restrictions and how the Agency treated the comparators, Complainant argues that the record was not adequately developed.
Finally, Complainant maintains that the Agency failed to search for positions for him during the two-year period when he sat in the break room without any work. He argues that the Agency not only failed to look into the Components Part positions that he identified but also failed to explore other reassignment options for him throughout the Agency. He asserts that, "because the record is not complete, these issues nee[d] to be explored at the hearing."
Agency's Response
In response, the Agency argues that a decision without a hearing was appropriate because the investigative record was adequately developed and there were no genuine issues of material fact. It also argues that the evidence establishes that it did not discriminate against Complainant on the bases of race and disability. The Agency acknowledges that Complainant is an "individual with a disability" within the meaning of the Rehabilitation Act. It contends, however, that it fulfilled its obligations under the Rehabilitation Act. According to the Agency, Complainant could not perform the essential functions of his Welder position with or without reasonable accommodation. The Agency asserts that, when Complainant no longer could perform those essential functions, it assigned him to work in the break room. The Agency further asserts that Complainant was not allowed to work overtime because his restrictions prevented him from being assigned to an area where such work was being performed.
In addition, the Agency contends that it did not treat Complainant differently from the way that it treated other injured employees. It argues that Complainant did not establish a prima facie case of discrimination that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and that Complainant did not show that the articulated reasons were pretextual.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. 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 EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Aug. 5, 2015) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 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").
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she 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 Corp. 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. Dep't of Def., 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 [p]arty opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250 n.5. 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).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that, when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, at Ch. 7, � 1; see also 29 C.F.R. � 1614.109(e).
In the instant case, for the reasons discussed below, we find that the AJ erred in issuing a decision without a hearing because there are material facts in dispute, the record is not completely developed, and the credibility of witnesses is at issue.
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie case of discrimination, Complainant must demonstrate that: (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly-situated employees outside of his protected classes. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sep. 26, 2002).
In the instant case, we find that the AJ erred in finding that Complainant did not establish that the Agency treated him less favorably than it treated a similarly-situated employee outside of his protected class. The AJ stated that other employees were treated differently because their medical restrictions were different from Complainant's. As noted above, however, Complainant specifically identified five Caucasian Welders who he claims had similar medical restrictions but had their Welder positions restructured to accommodate their restrictions. Complainant contends that these five Welders continued to receive overtime and hazard pay while injured. We note that, other than Complainant's assertions, the record contains no information concerning the Caucasian comparators' injuries, their restrictions, and the extent to which their Welder positions were restructured. When the AJ accepted management's assertions that these Caucasian comparators were treated differently because their restrictions were different, the AJ essentially rendered credibility determinations in favor of the Agency and against Complainant. Such determinations are inappropriate at the summary-judgment stage. See Redmand, 516 F.2d at 768; Pedersen, EEOC Request No. 05940339. Given Complainant's assertions and the lack of record evidence regarding the comparators' restrictions and the treatment that they received from the Agency, we find that there exists a genuine issue of material fact concerning whether the Agency treated Complainant less favorably than it treated similarly-situated employees outside of his protected groups.
We also find that genuine issues of material fact exist as to whether the Agency has articulated legitimate, nondiscriminatory reasons that are worthy of belief. As noted above, S1 asserted that Complainant's Welder position could not be modified to accommodate Complainant's medical restrictions. We note, however, that the Welder Leader averred that some injured employees were moved to the Welding Components Section. Further, Complainant claimed that certain Caucasian employees with injured legs and back injuries were allowed to work in restructured positions during their injuries. If Complainant's claims are true, this would more likely than not demonstrate that management's reasons were a pretext for discrimination. As the PD for the Welder Position specified, Complainant's position was inherently dangerous. With so many employees receiving injuries, it is unclear why Complainant was the only employee who was made to stay in the break room for two years and deemed not qualified due to injury for that length of time. We note that S1 averred that he contacted the Selective Placement Coordinator regarding the reassignment of Complainant. The Selective Placement Coordinator, however, stated that S1 had not submitted the necessary memorandum asking her to find Complainant another position for reassignment.
We find that there are genuine issues of material fact in dispute and issues of credibility regarding the existence of discriminatory animus and pretext. The credibility of Complainant, S1, and other management officials must be assessed through live testimony at a hearing.
Reasonable Accommodation
Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. � 1630.2(o), (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 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). "Essential functions" are the fundamental job duties of the employment position that the individual holds or desires. Id. � 1630.2(n).
A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 1. After receiving a request for reasonable accommodation, an agency "must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. pt. 1614. app. � 1630.9. Thus, "it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. � 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. � 1630.9; Enforcement Guidance on Reasonable Accommodation at Question 5.
Reasonable accommodation includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices, and reassignment to a vacant position. 29 C.F.R. � 1630.2(o)(2)(ii). In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. � 1630.2(n); Enforcement Guidance on Reasonable Accommodation, "Reassignment." An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors; if there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. The agency, however, may not use reassignment "to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities." 29 C.F.R. pt. 1630 app. � 1630.2(n); see also EEOC Enforcement Guidance: Workers, Compensation and the ADA, EEOC Notice No. 915.002, at Question 21 (employer may not unilaterally reassign an employee with a disability-related occupational injury to a different position without first assessing whether the employee can perform the essential functions of his or her current position with or without reasonable accommodation).
An agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time and, as part of the interactive process, should ask the employee about his or her qualifications and interests. Because it possesses the relevant information, an agency is obligated to inform an employee about vacant positions for which the employee may be eligible as a reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions); see also Enforcement Guidance on Reasonable Accommodation at Question 28. The employee should assist the agency in identifying vacancies to the extent that the employee has information about them. Further, if the agency is unsure whether the employee is qualified for a particular position, the agency can discuss with the employee his or her qualifications Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing)); see also Enforcement Guidance on Reasonable Accommodation at Q. 28.
We emphasize that a federal agency's obligation under the Rehabilitation Act to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area. Instead, the extent of the agency's search for a vacant position is an issue of undue hardship. Enforcement Guidance on Reasonable Accommodation at Q. 27. Accordingly, absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation.
In this case, it is undisputed that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. It also is undisputed that Complainant met the requisite skill, experience, education, and other job-related requirements of the Welder position. Complainant has asserted that he could perform the essential functions of the position held or desired with or without reasonable accommodation. In that regard, he has argued that the Agency could have restructured his Welder position to accommodate his restrictions. He also has argued that the Agency could have reassigned him to a position in the Welding Components section.
We find that there are genuine issues of material fact concerning whether the Agency could have provided Complainant with a reasonable accommodation that would have enabled him to perform the essential functions of his Welder position and, if not, whether the Agency could have reassigned Complainant to a vacant equivalent position. Complainant requested reasonable accommodation when, beginning in January 2011, he submitted medical documents stating that he could return to work with restrictions. In response, the Agency reassigned him to a position in the break room.
Complainant asserted during the Fact-Finding Conference that he could perform the essential functions of his Welder position with or without reasonable accommodation. S1 and S2, however, asserted that Complainant could not perform his Welder duties. This clearly is a material fact in dispute, especially in light of Complainant's claims that other employees with similar physical restrictions had their Welding positions restructured. Whether Complainant could have performed the essential functions, whether there was a reasonable accommodation that would have enabled him to do so, and whether the Agency could have provided such accommodation without incurring an undue hardship must be determined at a hearing.
Similarly, whether there existed an equivalent vacant position to which Complainant could have been reassigned without undue hardship also must be determined at a hearing. The position in the break room, where Complainant performed menial tasks such as removing rainwater and cleaning windows, clearly was not equivalent to Complainant's Welder position in terms of pay, status, and benefits. Although S1 asserted that he contacted the Selective Placement Coordinator regarding reassignment of Complainant, the record does not demonstrate that the Agency conducted a search for a vacant, funded position for Complainant. In fact, the record in this case does not reflect any information regarding whether equivalent vacancies existed at the time in question. For example, the record does not disclose whether there were any vacant, funded positions in the "Welding Components" section. The Welder Leader indicated that other injured employees had been reassigned to that section, and Complainant has alleged that the Agency discriminatorily did not reassign him there. We find that there is a dispute about whether there existed a vacant, funded Welding Components position whose essential functions Complainant could perform with or without reasonable accommodation. We also find that the record, which contains no information about vacancies, has not been adequately developed.
The lack of information regarding vacancies is particularly troublesome here, where the Agency had a duty to conduct a thorough, impartial investigation. In litigation, an employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. See, e.g., Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997); see also Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002) (complainant can establish that vacant, funded positions existed by producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period). During the investigative stage of the federal administrative process, however, the agency has an obligation to develop an adequate investigative record. 29 C.F.R. � 1614.108. "An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." Id. � 1614.108(b). The investigator must conduct a thorough investigation, "identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome." EEO MD-110, Chap. 6 � V.D. Therefore, the investigator must exhaust those sources of information likely to support the positions of the complainant and the agency. Id.
The investigative record in this case is inadequate. The investigation should have disclosed whether, and to what extent, the Agency conducted a search for an equivalent vacant position to which it could have reassigned Complainant. The investigation also should have identified the available positions, and the investigator should have given Complainant an opportunity to address whether he could have performed the essential functions of the vacant positions with or without reasonable accommodation.
So that there is no doubt going forward, we clarify that, as part of the federal-sector investigative process, the investigator must obtain relevant information about the availability of vacant, funded positions. The investigator should obtain such information from the Agency, which is in the best position to know the availability of vacant positions. The investigator then should give the complainant an opportunity to explain whether she or he could perform the essential functions of the position(s) with or without reasonable accommodation.
In sum, we find that there are genuine issues of material fact that require an assessment as to the credibility of the various management officials, coworkers, and Complainant. We further find that the record is not adequately developed regarding the matters noted above. Accordingly, we remand this matter to the AJ for further development of the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented genuine issues of material fact, such that summary judgment was not appropriate. Accordingly, we VACATE the Agency's final order and REMAND for further processing in accordance with the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Birmingham District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the AJ shall process the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Page numbers after ROI refer to "Bates stamp" numbers on the bottom right of each page.
3 Complainant also alleged (3) that his "lead men" harassed him by asking him to mop the break room, to clean windows, and to fold coveralls, and (4) that he asked his supervisor to tell the Division Chief that he could perform his welding duties. The Agency dismissed these allegations on the ground that they failed to state a claim. Complainant has not challenged the dismissal of these allegations. Accordingly, we do not address these matters herein.
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