01970394
12-13-2000
Glenn T. Brown, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Glenn T. Brown v. Department of Transportation
Appeal No. 01970394
December 13, 2000
.
Glenn T. Brown,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01970394
Agency No. DOT-94-0182
The complainant timely filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final agency decision
dated September 12, 1996 concerning his complaint of unlawful employment
discrimination in violation of � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted under 29
C.F.R. � 1614.405.<1>
ISSUE PRESENTED
Whether the complainant was discriminated against on the basis of
disability (hearing loss) when over a period of months the agency failed
to accommodate his disability.
BACKGROUND
The complainant filed an equal employment opportunity (EEO) formal
complaint alleging the above issue. Following an investigation, he did
not request a hearing before an EEOC Administrative Judge. The agency
then issued a final decision finding no discrimination.
The complainant worked as an Air Traffic Control Specialist (ATCS),
GS-12 in the agency's Federal Aviation Administration (FAA), Air Traffic
Division (ATD). His duties included giving pilots meteorological and
aeronautical information needed to make decisions and calculations.
Specifically, while pilots were pre-flight and in-flight (air borne), this
included giving relevant weather, routes of flight, aids to navigation,
and terminal information. In-flight duties also included identifying
emergencies and providing rapid remedies such as orienting lost aircraft
and dispatching emergency equipment.
The complainant began working at the FAA in 1970, and since 1971 was
stationed at the Atlanta flight service station. When this station closed
in February 1993, he was reassigned to the Macon, Georgia automated flight
service station. In Atlanta, in-flight duties were located away from
other employees, and the complainant used a hand held microphone and
loud speaker. In Macon, employees with different in-flight positions
sat side by side, and the complainant used a headset. There was a loud
speaker, but it was not used because it created communications problems
for controllers. Macon was much busier. Atlanta handled about six
frequencies, whereas there were 30 to 40 at Macon.
While going through on-the-job certification in Macon, the complainant
complained that he had difficulty performing his duties because of a
hearing problem and tinnitus in his right ear.<2> He raised this with
an unidentified agency medical official in March 1993. The complainant
indicated a loud speaker was not useful because it was permanently
installed to his right (the speaker was not actually used). His hearing
was better on his left side. He asked to be excused from his position,
an apparent reference to in-flight duties. The medical official advised
that accommodation requests should be made to management.
On April 1, 1993, the complainant got a letter from his physician, an
otologist, stating he was disturbed by multiple loud sounds in some of
his work situations, and may be able to better concentrate at work if
he was exposed to less noise and competing voices. Then in early April
1993 the complainant made a request to Macon management for a waiver
from in-flight duties. He explained that he only had the ability to
discern one voice or sound at a time. He stated this started to become
apparent in Atlanta after 1989.
Based on the complainant's assertion that he was unable to perform his
duties, and confirmation by observers, the complainant's situation was
referred to an agency flight surgeon. In late April or May 1993, the
complainant was medically disqualified from ATCS duties by the flight
surgeon. The record reflects that the flight surgeon was flexible,
and would recertify the complainant if it was demonstrated in practice
that he could perform his duties. The complainant's last day at work
was May 17, 1993. He went out on sick leave.
The agency declined the complainant's request to eliminate in-flight
duties. It explained, in essence, that they were an essential function
of his job. Specifically, it informed the complainant that they were
grade controlling and eliminating them would create a different position.
Starting in June 1993, the FAA's Human Resource Management Division
started trying to find the complainant alternative employment. It asked
if he wished to be reassigned, and if so to provide certain information.
In response, the complainant stated that he would accept an assignment
only in the Atlanta and Macon areas, would consider jobs down to the
GS-7 level, and submitted an application for federal employment. An FAA
personnel staffing specialist stated that he reviewed the complainant's
application and determined in June 1993 that there were no positions in
the Southern Region for which the complainant was qualified outside ATD.
Accordingly, later in June 1993 the personnel staffing specialist sent
a memo to the Southern Region ATD asking if there were any positions
available for the complainant that would utilize his expertise in air
traffic. ATD responded there were no openings to offer the complainant.
Meanwhile, in response to a letter from the complainant, the FAA's
regional Selective Placement Coordinator for Employing Persons with
Disabilities (Disability Coordinator) contacted the complainant in July
1993. The Disability Coordinator indicated that he put the complainant
in touch with a hearing impaired employee he knew of in another region
who found an accommodation. But this did not provide an immediate
solution for the complainant. The Disability Coordinator then got in
touch with the Job Accommodation Network (JAN). JAN was established by
the President's Committee on Employment of People with Disabilities as an
information and consulting service providing individualized accommodation
solutions to enable people with disabilities to work. The complainant
talked with JAN at length.
In August 1993 the Acting Manager of the ATD formally informed the FAA
Manager of Human Resource Management Division that ATD was unable to
find a reasonable accommodation for the complainant. Specifically, he
wrote that after discussion ATD concluded that no amount of equipment
modification could accommodate what the complainant described as severe
tinnitus and the inability to discern more than one voice or sound
at a time. The Acting Manager also wrote that ATD looked for another
position which did not require medical clearance, but was unsuccessful.
Accordingly, on September 20, 1993, the agency convened a Counseling and
Review Board to review the agency's reasonable accommodation efforts.
The board was comprised of the Acting Manager of the Employment Branch,
the Regional Flight Surgeon, the Disability Coordinator, the referenced
FAA personnel staffing specialist, and an ATD operations specialist.
The complainant also attended. The Board concluded that ATD explored
all options for providing a reasonable accommodation and that the agency
made all reasonable placement efforts. Nevertheless, it solicited from
the complainant a more detailed application for federal employment so
the agency could continue job search efforts.
After reviewing the new application, the FAA personnel staffing sent
a memo to the Manager of the Logistics Division in early October 1993.
It stated that the complainant was qualified as a Supply Technician, GS-5,
enclosed his application, and asked if there were any positions in the
division for him in the Southern Region. The division manager replied
there were no vacant positions for which the complainant qualified.
Meanwhile, the Disability Coordinator continued his efforts to find the
complainant a reasonable accommodation. The Disability Coordinator
affirmed that on January 16, 1994, he received a telephone call from
JAN stating it found a company that manufactured a device that should
help the complainant. Later the same week the Disability Coordinator
arranged for a three-party call between the Coordinator, the complainant,
and the company. The complainant then visited the company, a device
was manufactured, and he was fitted. It was a molded ear piece.
Earlier, on January 6, 1994, the complainant told the flight surgeon
that he believed he could perform his in-flight duties if the speaker
was moved to his left side. Also, at some point the complainant told
the flight surgeon that he believed he could perform these duties with
a molded ear piece. The flight surgeon responded that the complainant
would need an over-the-shoulder evaluation to see if these things
would work. It then started, at least informally, in January 1994.
A quality assurance specialist who evaluated the complainant performing
in-flight duties in February 1994 found that he ably performed his
duties while alternatively using his molded ear piece and loud speaker.
But the specialist observed that the speaker was not effective because
it created problems for the other ATCSs. The complainant did well in
a series of other on-the-job evaluations in early March 1994.
Then on March 10, 1994, ATD sent a letter to the flight surgeon
recommending that the complainant be certified for ATCS duties. After a
physical examination, the flight surgeon cleared the complainant to
perform ATCS duties with the limitation that he discontinue regular
use of temazepam (a sedative-hypnotic primarily used for insomnia)
and carisprodol (a muscle relaxant).
The complainant does not contend he was able to return to work during
this time. The record reflects that while out on sick leave he took a
part-time job as a grocery clerk. He injured his back doing this job in
August 1993, and stopped working. He worked there about three weeks.
He had an operation for a herniated disc in October 1993, but his pain
continued even with physical therapy and medication.
Around April 1994, an ATD manager began speaking to the complainant
to clarify when he would return. Over the months the manager stayed
in contact with the complainant. The complainant repeatedly asked for
leave, citing for example a bleeding prostate and medication that made
him depressed and unable to drive. The leave was granted. At the ATD
manager's request, the complainant submitted a June 1994 letter from
the office of his neurosurgeon. It stated the complainant had signs of
depression and stated that he could not return to air traffic duties due
to stress. On July 11, 1994, the ATD manager contacted the complainant
again. The complainant said he was off medication, but still had periods
of depression and problems sleeping. The manager advised the complainant
to report to duty. Nevertheless, he continued on approved leave.
In fact, the complainant exhausted his sick leave around May 1994,
took some annual leave, and was then granted advanced sick leave.
In July 1994 the complainant's treating psychiatrist cleared him to
return to work with no restrictions. The psychiatrist indicated that the
complainant had anxiety and depression because of medications (apparently
for his back), but his condition had improved. After some delay by
the complainant, he returned to work on July 25, 1994. Upon returning,
he discussed his depression and anxiety with his manager. He told his
manager that to protect his health, he was retiring, and did so effective
July 30, 1994.
ANALYSIS AND FINDINGS
As a threshold matter, one bringing a claim of discrimination on the
basis of disability must show that he is an individual with a disability.
29 C.F.R. � 1630.2(g).<3> The complainant characterized his tinnitus
as severe, stating it sounded like a loud combination of crickets, a
waterfall, a ringing sound, and blowing wind. He stated it was difficult
for him to have a conversation in a loud, crowded room. In its final
decision, the agency found that the complainant was an individual with
a disability. Accordingly, the issue of coverage under the Rehabilitation
Act is not before the Commission, and need not be discussed further.
A qualified individual with a disability is one who has a disability
and satisfies the requisite skill, experience, education and other
job related requirements of the position in question and can, with or
without reasonable accommodation, perform the essential functions of such
position. 29 C.F.R. � 1630.2(m). The complainant contends that after
the agency became aware of his disability, it was required to provide him
the reasonable accommodation of modifying his job to eliminate in-flight
duties. But under the Rehabilitation Act and the ADA, an employer is not
required to eliminate an essential function of a position as a form of
reasonable accommodation. Id.; EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, preliminary discussion before question 16, (March 1, 1999).<4> The
record shows that in-flight duties were a core or essential function of
the complainant's ATCS job.<5>
In his EEO complaint, the complainant contended that he suggested
in-flight duties be moved to a separate room so he could use a loud
speaker, and alleged the ATD operations specialist responded at the
Counseling and Review Board meeting of September 20, 1993 that this was
too expensive. There are no other references to this in the record. It
is not mentioned in the counselor's report, the complainant's affidavit,
or his appeal, and notes by agency officials detailing contacts with the
complainant or their statements. The ATD operations specialist stated
that his only involvement with the complainant's situation was sitting
in on meetings.
Given the above, and other circumstances surrounding the loud speaker,
we find that it is more likely than not the complainant did not make
a request for a separate room as alleged above. The agency gave the
complainant an over-the-shoulder evaluation using a loud speaker soon
after he expressed a desire to use it in January 1994. This demonstrates
a good faith effort by the agency to explore such an accommodation when
he raised it. The evaluation indicated the complainant could hear well
with the speaker, but it disrupted other ATCSs. However, by this time
the loud speaker option could readily be discarded because the molded
ear piece was also shown to work. Prior to the evaluation, it was not
apparent that the loud speaker would work for the complainant given the
description of his hearing.
On appeal, the complainant takes issue with the fact that it took
the agency some nine months, until January 1994, to find a reasonable
accommodation. Under the Rehabilitation Act, it is anticipated that
the search for a reasonable accommodation is an interactive process
between the employer and the individual with a disability. When the
parties are unaware of possible effective accommodations, there are
outside sources to help find an answer. Id., question 5. Here,
the complainant initially asked for in-flight duties of his job to be
eliminated, something which the agency explored but legally denied,
and for reassignment. In compliance with the complainant's desire,
the agency gathered information on his qualifications and promptly
explored reassignment, but its repeated searches were unsuccessful.
These repeated searches met the agency's Rehabilitation Act obligations
to try to effectuate a reassignment.
As part of the unreasonable delay argument, the complainant avers that
it was the EEO counselor that actually found the other hearing impaired
employee. The complainant references the counselor's report. But both
the counselor and the Disability Coordinator may have worked separately
on this matter. The complainant also contends that the hearing impaired
employee was not uncovered until January 1994, and that JAN was not
contacted by the agency until December 1993. He references a cover letter
JAN sent to the Disability Coordinator in December 1993 which stated
information on environmental enclosures was enclosed. These contentions
were made for the first time on appeal, and the record does not provide
specific dates on this matter. Nevertheless, the record establishes that
the agency made appropriate efforts to find the complainant a reasonable
accommodation, and when one was found, took timely action to implement
it. As recounted in this decision, the agency never stopped trying
to find a solution which would accommodate the complainant. It looked
into restructuring his position, reassignment, held a Counseling Review
Board meeting, prompted ATD to explore equipment modification, put the
complainant in touch with another hearing impaired employee, contacted
and worked with JAN, and tested the effectiveness of suggested equipment.
Soon after the complainant obtained the molded hearing piece, the agency
began the certification process with him using it. After the complainant
was certified, he still did not return, citing problems unrelated to
his hearing. Nevertheless, as the agency did throughout the process,
it kept the complainant informed of its efforts while he was on sick
leave for various reasons, including advanced sick leave.
After the complainant returned, he resigned within five days. While the
complainant alleged in his EEO affidavit that he resigned because he was
confused and depressed and ran out of sick leave, he does not contend
that the agency forced him to resign.
The complainant has failed to show that the agency violated the
Rehabilitation Act.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the agency's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
December 13, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Tinnitus is the perception of sound in the absence of an acoustic
stimulus.
3The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
4This guidance is posted at www.eeoc.gov.
5On appeal, the complainant references language in the counselor's report
which reported that ATD did not want to set a precedent by accommodating
him. However, this referred to eliminating the essential function of
in-flight duties, something which it was not required to do.