0120140390
04-07-2014
Complainant, v. Eric Fanning, Acting Secretary, Department of the Air Force, Agency.
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120140390
Hearing No. 560-2013-00071X
Agency No. 4L0J12001
DECISION
On October 29, 2013, Complainant filed an appeal from the Agency's September 30, 2013 final decision 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Aircraft Mechanic. However, due his condition, Complainant was reassigned as a Tool and Parts Attendant at the Agency's Air Force Base facility in Altus, Oklahoma.
On November 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (shattered right leg and elbow) when:
1. Complainant was denied reasonable accommodation when he was placed in the Tool Attendant Position rather than his prior position with an accommodation or a GS position that did not require physical work.
2. His supervisor (Supervisor) told him that he could only request time off through the Supervisor.
3. On August 26, 2011, the Supervisor contacted his doctor regarding his disability.
4. On November 15, 2011, the Chief gave him an additional duty that would exceed his disability restrictions.
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 requested a hearing but the AJ denied the hearing request on the grounds that Complainant's request was made in an untimely manner. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency issued its decision finding no discrimination. The Agency initially dismissed claim (1) for untimely EEO counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). However, for purposes of analysis, the Agency also addressed Complainant's claim (1).
The decision initially held that Complainant's condition constituted a disability under the Rehabilitation Act. As to claim (1), the Agency noted that Complainant was not able to perform the functions of his Aircraft Mechanic position. It had temporarily provided him with work within his restrictions as the Agency searched for a vacant funded position to which Complainant could be reassigned. The HR Assistant indicated that the only vacant funded position to which Complainant could be reassigned was the Tool and Parts Attendant. As such, the Agency held that Complainant was provided with a reassignment as a reasonable accommodation and that it did not violate the Rehabilitation Act.
As to the remaining three claims, the Agency determined that management provided legitimate, nondiscriminatory reasons for its actions. The Supervisor asked that Complainant contact him regarding leave because Complainant made it known that he was unhappy working in his new assignment and began taking a great amount of leave or just not reporting for duty. The Supervisor merely exercised his options as a supervisor to correct what he saw as unacceptable behavior. He averred that, with respect to claim (3), he did not contact Complainant's physician. Instead, the Supervisor indicated that he contacted the HR Assistant to help him decipher the Physician's note. Finally, as to claim (4), the Supervisor indicated that he chose Complainant to be the Alternate Equipment Custodian but informed Complainant that he did not have to do anything that Complainant felt was outside of his abilities or restrictions. The Supervisor indicated that he asked Complainant to do these duties based on his prior experience and felt that this would be more "academic/management" than physical. In addition, the record indicated that all the equipment and tools were weighed so that it was clear what Complainant could and could not lift.
The Agency then turned to Complainant to establish that the Agency's reasons were pretext for discrimination. As to claim (2), the Agency noted that Complainant corroborated the Agency's argument that he was not happy in his new position. As to claim (3), Complainant merely asserted that the Physician's office was contacted but failed to provide any supporting evidence. Finally as to claim (4), Complainant asserted his dissatisfaction with the reassignment and had wanted a reassignment to a sedentary position. Finding that Complainant failed to establish that the Agency's reasons were pretext for discrimination, the decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
Reasonable Accommodation
In claim (1), Complainant asserted that the reassignment constituted a denial of reasonable accommodation. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant also must show that he is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). We note that the discussion of "qualified" does not end at complainant's position. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person 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). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is "qualified," an agency must look beyond the position which the employee presently encumbers. Accordingly, an agency should consider reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002 (revised October 17, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). Here, the Agency reassigned Complainant to a vacant funded position. Management noted that they were aware of Complainant's limitations and instructed Complainant on numerous occasions that he should not exceed his restrictions.
Complainant has an evidentiary burden in reassignment cases to establish that it is more likely than not (preponderance of the evidence) that there were vacancies during the relevant time period into which complainant could have been reassigned. Complainant can establish this by producing evidence of particular vacancies. However, this is not the only way of meeting complainant's evidentiary burden. In the alternative, complainant need only show that: (1) he or she was qualified to perform a job or jobs which existed at the agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. Upon review, we find that Complainant has failed to provide any such evidence. Complainant asserted that others were assigned to sedentary positions. However, Complainant failed to demonstrate that any such position was available at the time of his reassignment.
We also note that it is the Commission's position that if more than one accommodation is effective, "the preference of the individual with a disability should be given primary consideration; however, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations." 29 C.F.R. � 1630.9; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Question 9 (revised October 17, 2002); Polen v. Dep't of Defense, EEOC Appeal No. 01970984 (Jan. 16, 2001). Thus, while Complainant may be entitled to an effective reasonable accommodation under the Rehabilitation Act, he is not entitled to the accommodation of his choice. Accordingly, we find that the Agency provided complainant with a reasonable accommodation even though it was not the exact accommodation he preferred. As such, although Complainant preferred another position, he has not shown that his assignment was not an effective accommodation. Therefore, we determine that Complainant has not established that the Agency's action constituted a violation of the Rehabilitation Act.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Again, for purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). The Agency provided legitimate, nondiscriminatory reasons for its actions. The Supervisor averred that he asked Complainant to contact him regarding leave based on Complainant's clear dislike of the workplace and a concern that Complainant had been abusing leave. Further, the Supervisor stated that he could not read the Physician's note and contacted the HR Assistant to help him. He denied contacting the Physician directly. Finally, as to the assignment, the Supervisor asserted that he assigned Complainant to the Alternate Equipment Custodian assignment and instructed Complainant not to do anything outside of his physical restrictions. We turned to Complainant to show that the reasons were pretext for discrimination. Upon review, we find that Complainant's mere disagreement with the Agency's actions is not sufficient to establish that the actions constituted unlawful disability-based discrimination.
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 decision finding no 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
April 7. 2014
__________________
Date
2
0120140390
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140390