EEOC Appeal No. 0120110248
02-20-2015
Complainant v. Dep't of the Treasury
Complainant,
v.
,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120110248
Hearing No. 550-2010-00182x
Agency No. IRS0933F
DECISION
On October 13, 2010, Complainant filed an appeal from the Agency's October 1, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS the complaint to an EEOC Administrative Judge (AJ) for a hearing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-1811-13 Special Agent in the Criminal Investigation Division (CI), in the Agency's Oakland, California facility. Complainant states that he developed tinnitus in his right ear during training for the Special Agent position in May 2002. As a result, Complainant has hearing loss in his right ear.
As a GS-1811-13 Special Agent, Complainant is charged with planning and conducting investigations into criminal tax violations and other financial crimes. The position description for the GS-1811-13 Special Agent lists among the major duties: "Conducts or participates in surveillance, armed escorts, dignitary protection, undercover operations, execution of search and arrest warrants, seizures, etc. Protects the government's interest in enforcement activities. Maintains good physical condition in order to conduct criminal investigations, surveillance, protective assignments, undercover assignments, etc."
The Series 1811 Treasury Enforcement Agent Individual Occupational Requirement states, "Hearing loss, as measured by an audiometer, must not exceed 30 decibels (A.S.A.1 or equivalent I.S.O.2) in either ear in the 500, 1000, and 2000 Hz ranges. Applicants must be able to hear the whispered voice at 15 feet with each ear without the use of a hearing aid." While Special Agents are allowed to wear hearing aids while performing their work, they are not allowed to wear hearing aids to meet the hearing standard during the audiogram and functional hearing tests.
During his annual audiogram on February 20, 2008, Complainant failed to meet the 1811 hearing requirement in his right ear. Complainant was not permitted to wear a hearing aid during the audiogram. Complainant underwent and failed a second audiogram on March 22, 2008, also without a hearing aid.
Complainant was notified on May 19, 2008, that based on the failed audiograms Complainant did not meet the hearing requirements outlined in the Series 1811 Treasury Enforcement Agent Individual Occupational Requirement. As a result, Complainant was required to undergo a repeat audiogram and a functional hearing test that would test his ability to "hear within noise."
On or about May 23, 2008, Complainant was placed on temporary restricted duty (TRD), was relieved of his government-issued weapon, and he was restricted from performing certain duties such as executing search warrants and arrest warrants.
On July 14, 2008, Complainant had a functional hearing without a hearing aid test which revealed that Complainant's speech discrimination at 50 dBHL was at 96% for the left ear and 8% for the right ear. The doctor determined that Complainant was able to successfully localize average and loud sounds, but was only able to localize soft sounds approximately 50% of the time. Complainant requested to be tested again because he had a cold on July 14, 2008. Complainant was again tested without a hearing aid on July 28, 2008, and the results revealed that Complainant's speech discrimination at 50 dBHL was at 100% for the left ear and 12% for the right ear. The doctor again determined that Complainant was able to successfully localize average and loud sounds, but was only able to localize soft sounds approximately 50% of the time.
On or about August 15, 2008, an Occupational Audiologist completed a medical review of Complainant's audiological tests and concluded that Complainant's hearing loss in his right ear put him at risk for failure to detect, recognize, and/or discriminate speech and other auditory signals on his right side. The Audiologist also stated that hearing aids would not restore normal auditory function, and would more likely result in even greater difficulty with localizing sounds. Finally, the Audiologist stated that Special Agents are "weapons-carrying federal law enforcement officers ... who must be able to safely participate in a broad range of law enforcement duties, including arresting suspects, serving search warrants, providing back-up protection for other agents, and conducting surveillance." Further, "[t]hey may be called upon to defend themselves or others with deadly force... [t]hus it is critical that special agents maintain adequate sensory capability to allow safe and effective job performance."
On August 28, 2008, the Agency's Medical Review Officer completed a medical review of Complainant's audiology evaluations and also concluded that because Complainant could not localize sound, he was not able to safely execute all GS-1811 duties. The physician also noted that hearing aids would not restore normal functions in Complainant's case.
On or around July 1, 2009, Complainant received a performance rating of "Exceeds Fully Successful." The Agency asserts that Complainant's supervisor lowered ratings for everyone in his group for the 2008-2009 appraisal year to better reflect the Agents' work as past ratings were inflated. Complainant asserts that he should have received an "Exceeds" ratings rather than "Meets" ratings in four of the performance areas.
On or around December 11, 2009, Complainant took an independent functional hearing test under similar guidelines as the Agency administered test. In that test Complainant wore a hearing aid and was able to pass the test. Complainant notified the Agency, but the Agency still would not permit Complainant to take the hearing test with a hearing aid.
On October 27, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (hearing loss in right ear) when:
1. Beginning May 23, 2008, and continuing, he was placed in an unwarranted temporary restricted duty status; and
2. On July 1, 2009, he received a lower annual performance appraisal for the rating period of May 1, 2008, to April 30, 2009.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's June 9, 2009, motion for a decision without a hearing and issued a decision without a hearing on September 20, 2010. In that decision the AJ adopted the Agency's motion verbatim, and found that Complainant failed to establish that discrimination existed. 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 he was never informed that he had to respond to the Agency's Motion for a decision without a hearing within 15 days. Further, Complainant contends that there are material facts in dispute.3 In opposition to the appeal the Agency contends that Complainant is not qualified for the position because his hearing impairment poses a direct threat to the health and safety of himself and others.
ANALYSIS AND FINDINGS
Decision Without a Hearing
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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"). 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 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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 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 [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 review of the entire record, we find that there are genuine issues of material fact that remain in dispute, as discussed below. Therefore, we find that a hearing is necessary.
Reasonable Accommodation
The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant 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 a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(c) and (p).
Here, the Agency does not dispute that Complainant is an individual with a disability. Next, Complainant must establish that he is a "qualified individual with a disability," which is defined as an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m).
An employer may require, as a qualification standard, that an individual not pose a direct threat. A "direct threat" is defined as "a significant risk of substantial harm" which cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r). The Agency has the burden of proof regarding whether there is a significant risk of substantial harm. See Massingill v. Department of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000). A determination as to whether an individual poses such a risk cannot be based on an employer's subjective evaluation or, except in cases of the most apparent nature, merely on medical reports. See Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). Rather, after identifying the risk, the employer must conduct an individualized assessment that takes into account: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 29 C.F.R. � 1630.2(r). This assessment must be based on objective evidence, not subjective perceptions, irrational fears, patronizing attitudes or stereotypes about the nature or effect of a particular disability or of disability generally. Relevant evidence may include input from the individual with a disability, his work history or experiences in previous positions, and opinions of medical doctors who have expertise in the particular disability or direct knowledge of the individual with the disability. If it is determined that an individual does pose a direct threat because of a disability, the employer must determine whether a reasonable accommodation would eliminate the risk of harm or reduce it to an acceptable level.
The Agency asserts that Complainant posed a direct threat due to his hearing loss, and thus the Agency properly restricted his law enforcement duty. The Agency stated that a bulk of the Special Agent's time is spent in the field investigating subjects, executing warrants, and performing other law enforcement duties in potentially dangerous environments. The Agency stated that a Special Agent's hearing ability, and in particular the ability to localize sounds, is essential to his ability to carry out his law enforcement duties without endangering himself, his fellow Special Agents, and/or the public.
The Agency must now establish that a reasonable accommodation will not eliminate the risk of harm or reduce it to an acceptable level. Complainant requested that he be allowed to wear a hearing aid during the audiogram and functional hearing tests to meet the hearing requirement. Complainant provided evidence that showed that he was able to pass an audiogram similar to the Agency's examination with the assistance of a hearing aid. Additionally, the Agency allows Special Agents to wear hearing aids in the field.
The Agency asserts that a hearing aid cannot be given as a reasonable accommodation. Specifically, the Agency stated that Special Agents must meet the hearing requirement without a hearing aid because hearing aids may malfunction, break, or become dislodged in a law enforcement scenario. The Agency also asserted that hearing aids are inappropriate because they cause "localization confusion."
A review of the record reveals that there is evidence that may undermine the Agency's argument that hearing aids are not acceptable because they may break or become dislodged during a law enforcement scenario. Specifically, the record establishes that the Agency allows individuals with vision impairments to use glasses as a mitigating measure during the vision portion of the medical examination, and also allows Special Agents to wear glasses while out in the field. Similar to hearing aids, glasses could also break or become dislodged while a Special Agent is in a law enforcement scenario. Evidence in the record establishes that the Agency acknowledged the conflicting vision and hearing policies, but was not able to come to a decision that would rectify the conflict.
Complainant stated that he has been able to adjust to any issues with localization of sound when he is wearing a hearing aid, and localization confusion is not an issue for him. Specifically, Complainant stated that all he has to do is turn his head to localize a sound. Further, Complainant inquired to the Agency about a particular type of hearing aid called a "lyric device" as a reasonable accommodation when he takes the hearing test and while he is working in the field as a Special Agent. The lyric device is implanted in the ear canal and the individual can shower, sleep, and exercise with the device without fear of it becoming dislodged. Additionally, because the lyric device is inserted so far down the ear canal, hearing is supposed to sound more natural and provides less distortion, better directionality, better high frequency gain, and less occlusion.
After a review of the entire record, we find that a genuine issue of material fact is in dispute. Specifically, a hearing is necessary to determine whether a hearing aid would be a reasonable accommodation during the hearing test and in the Special Agent position, and if so, would it eliminate the risk of harm or reduce it to an acceptable level. Therefore, we vacate the Agency's final order and remand Complainant's reasonable accommodation claim to an AJ for a hearing. Additionally, in order to avoid fragmentation of the complaint, we remand Complainant's performance evaluation claim for a hearing as well.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order, and REMAND the complaint for a hearing before an EEOC Administrative Judge, in accordance with this decision and the order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC San Francisco 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 Administrative Judge shall issue a decision on 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 20, 2015
__________________
Date
1 American Standards Association.
2 International Organization for Standardization.
3 On appeal Complainant raises for the first time that the Agency changed its policy as of August 27, 2010, and auditory testing is no longer mandatory for 1811 Special Agents, however Complainant still remains in TRD status. The Commission has held that new claims may not be raised for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Since this complaint is being sent back to the AJ for a hearing, Complainant may request that the AJ amend this complaint to include this new claim.
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0120110248
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110248