0120110242
01-11-2013
Bruce W. Brown, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency.
Bruce W. Brown,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Law Enforcement Training Center),
Agency.
Appeal No. 0120110242
Hearing No. 410-2009-00297X
Agency No. DHS-FLE-TC-17714
DECISION
On October 13, 2010, Complainant filed an appeal from the Agency's September 7, 2010, 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 the Agency's final order which found Complainant failed to show that he was subjected to discrimination as he alleged.
ISSUE PRESENTED
The issue presented in this case is whether the EEOC Administrative Judge (AJ) correctly found that Complainant failed to show that he was subjected to discrimination and denied a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Instructor GS-13, at the Agency's Federal Law Enforcement Training Center in Glynco, Georgia. On January 29, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (not specified) when from May 2007 through November 2008, he was denied a reasonable accommodation with regard to the functional limitations associated with his disability and he contends that he was assigned duties that violated the restrictions imposed by his treating physician.1
The record reveals that Complainant is a driving instructor in a variety of specialized types of driving that is used in police work. In 2006, while performing a difficult bumping maneuver he lost control of his vehicle and crashed into a tree and was injured. He was off work for several weeks and returned to work as a light duty driving instructor. Complainant alleged that the light duty offered to him was not sufficient so he filed an EEO complaint. On May 29, 2007, the Agency settled this complaint with a resolution that had two components to it. The agreement indicated that Complainant would be transferred to a different supervisor, and, he would be allowed to work in the Driver Simulation Lab (Lab). The commitment to let Complainant work in the Lab was qualified. The agreement stated that it was the Agency's intention to allow Complainant to remain in the Lab, but that he could be moved at anytime based upon the needs of the Agency. The Lab involved purely sedentary work.
As a result of his injuries Complainant indicated that he was limited to sedentary work. He asserted that his ability to sit, walk, and lift were all severely limited. He reported being in constant excruciating pain that prevented him from walking more than five or ten feet or walking on the type of slightly uneven ground that one could expect to encounter on some of the driving ranges. The medical documentation submitted by Complainant however, did not show limitations as restrictive as he described. The earliest medical documentation showed that Complainant could return to work on October 2006. He was diagnosed with a medial meniscal tear to the right knee.
His October 16, 2006, medical documentation indicated that he should avoid climbing and indicated he had driving restrictions. Through September 2007, Complainant's medical documentation indicated that he had a lifting restriction of 20 to 50 lbs and that he should avoid climbing. In September 19, 2007, Complainant's restrictions included for the first time "simulators only," no lifting over 20 lbs, and no climbing. In October 2007, his medical documentation indicated that he could only drive to work and back and that he could stand and walk for up to an hour. The medical documentation from November 9, 2007 through February 29, 2008, shows that stand/walk hours per day is not filled in or is crossed out. Also, the repeated lifting/pushing/pulling limit was decreased to five pounds. The last medical document provided is dated October 28, 2008, and it shows that Complainant can stand/walk one hour per day, the repeated lifting/pushing/pulling limit was increased to ten pounds and phrase "simulator only" was again written on the form.
Complainant was assigned exclusively as an instructor in the Lab beginning on July 27, 2007, for Driver Simulator pilot training and served in that capacity throughout September 2007. Per normal protocol for pilot programs, on September 25, 2007, the Driving Simulator pilot program ended and underwent an evaluation period. During the evaluation period, November and December 2007,2 based on Complainant's medical documentation the Agency determined that Complainant was capable of working on other projects which included the emergency response range as long as his duties were modified to meet his limitations and it was believed that he was qualified to work another range where he would be partnered with another instructor.
With respect to the emergency range Complainant maintained that he could not move the rubber cones that marked the courses as they weighed up to ten pounds. He also cited problems with climbing the stairs to the viewing towers of the emergency response range. Thus, Complainant maintained that he was being given duties outside of his restrictions. The Agency noted that Complainant did not initially have a lifting restriction and when one was provided he was restricted to lifting 20 pounds. The Agency maintained that Complainant was never worked outside of his restrictions and they argue that the cones weighed much less than ten pounds. Moreover, management argued that Complainant was not required to climb the tower in order to do what was required. Believing that he had been discriminated against Complainant filed the instant complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing and the AJ held a hearing on multiple days, and issued a decision on August 9, 2010. The AJ found that Complainant failed to show that he was denied a reasonable accommodation or that he was asked to work outside of his medical restrictions. The AJ found that while Complainant showed that he was a qualified individual with a disability, at least with respect to the work in the driver simulation Lab and the work on the Skid range, the NEVO range, and the driver response range given the modifications that the Agency made to those assignments, he failed however to show that the Agency assigned him work that fell outside of his medical restrictions. The AJ found that, while Complainant argued that he should have been provided a sedentary job assignment, his medical documentation did not support that contention.
Moreover, the AJ found that the record clearly showed that the Agency accommodated Complainant as it allowed him to observe students from his car, and when he worked the NEVO range he was partnered with someone who did the part of the job that Complainant could not do. Additionally, the AJ did not find Complainant's testimony credible that he complained some 250 times to his supervisor and other managers regarding the assignments that he was given that were outside of his restrictions. The AJ found that there was no evidence offered to support this assertion. The AJ questioned why Complainant did not lodge a protest in writing or via email and Complainant noted that he feared being fired. The AJ again questioned Complainant's credibility because he had previously filed two EEO complaints and had taken other measures to protect his interests in the past so, according to the AJ, it was doubtful that the explanation he offered about his fear of being fired was true. The question of Complainant's credibility again came in to play when Complainant denied that he had been involved in a second car crash until the Agency produced evidence which showed that this was the case. Finally, the AJ determined that Complainant failed to show how the Agency could only assign Complainant classroom work during the period when the Lab was closed. The AJ found that Complainant failed to show that he was subjected to discrimination based on disability and he failed to show that the Agency denied him a reasonable accommodation or worked him outside of his restrictions. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ decision should be reversed because the AJ erred both legally and factually. Complainant contends that the AJ erred by finding that the Agency acted reasonably when it assigned him to the driving range. The AJ also erred when he found that Complainant had made no showing that lifting the cones was a task that exceeded his limitations. Further, the AJ erred when he held that he failed to document the difficulties that he had getting the Agency to honor his medical restrictions. Complainant also indicates that the AJ erred when he found that he was offered a temporary thirty day respite from his range assignments and failed to take it; and the AJ erred when he found that Complainant failed to show that the Agency had a motive for purposefully ignoring his medical restrictions. Finally, Complainant maintained that the AJ erred by not finding that the Agency had failed to participate in the interactive process.
In response, the Agency requests that Complainant's appeal be denied. The Agency maintains that Complainant's restrictions were taken seriously, and to the extent possible within the available assignments, Complainant was accommodated. The duties assigned to the Complainant were within the written medical restrictions that were provided by Complainant to his Branch Chief and the Scheduler. And, on rare occasion when the schedule reflected an assignment that was outside of Complainant's written medical restrictions, Complainant would report it to his supervisor and the supervisor would modify the schedule. Further, once the Lab was fully integrated into the training curriculum Complainant was assigned as the lead instructor. The Agency contends that Complainant made unsupported and incredible claims that were not supported by the record. Moreover, the Agency asserts that the AJ found Complainant's testimony not to be credible.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). 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, 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 the individual with a disability holds or desires. 29 C.F.R. � 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at � 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at � I630.2(n)(3).
In the instant case, the Commission finds that even if we assume arguendo that Complainant is an individual with at disability, the record supports the AJ's finding that Complainant failed to show that he was denied a reasonable accommodation. The AJ correctly found that the Agency engaged in the interactive process with the Complainant to determine what positions he could do besides work in the Lab. The evidence shows that Complainant was given modifications to the various assignments he was given, for example, he was allowed to observe from the car and told that he did not have to climb the tower. He was also assigned a partner on some ranges who would perform the duties that were outside of his medical restrictions. While Complainant contends that he just observed from the car on two occasions and indicated that he felt he was obliged to climb the tower, we find support in the record for the AJ's determination that although Complainant decided to do these things, they were not actions required by the Agency. Further, management maintained that any time Complainant was given an assignment, he was provided the exact conditions that he needed in order to perform the work and the Branch Chief explained that what Complainant requested was followed.
With respect to Complainant's contentions on appeal, the evidence does not support the Complainant's contentions that the AJ erred both legally and factually. The evidence showed that the AJ made determinations in favor of the Agency because he found that Complainant's testimony was not credible. In fact, Complainant's own testimony at times supported the Agency's contentions that he was provided a reasonable accommodation and at other times the AJ found that the evidence showed that he was not being truthful.
Finally, the evidence indicates that Complainant was only interested in performing the Lab position, the Commission notes that while Complainant may not have been offered the reasonable accommodation of his preference, an employer is not required to provide the precise accommodation the employee or applicant wants, so long as the accommodation offered is an effective one under the circumstances of the situation. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Other than his conclusory statements, Complainant has not offered any evidence that the accommodations provided to him were ineffective. Accordingly, the Commission concurs with the AJ's finding that Complainant failed to demonstrate that he was denied a reasonable accommodation in violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Order which found that Complainant failed to show that he was subjected to discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_1/11/13_________________
Date
1 Originally, Complainant alleged that he was subjected to discrimination and hostile work environment harassment based on age (65), physical disability (unspecified), and retaliation for prior EEO activity when managers and staff of the Agency made disparaging comments and took adverse actions beginning in October 2007. The retaliation claim was voluntarily withdrawn by Complainant at the March 18, 2010 hearing. The AJ dismissed the harassment claim during the March 19, 2010 hearing on motion of the Agency leaving only the above complaint.
2 The Lab program was reinstituted on January 11, 2008, Complainant was returned to the Lab on January 26, 2008 as lead instructor.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110242
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120110242