Glynn Barron, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 18, 2004
01a44607 (E.E.O.C. Nov. 18, 2004)

01a44607

11-18-2004

Glynn Barron, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Glynn Barron v. Department of the Treasury

01A44607

November 18, 2004

.

Glynn Barron,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A44607

Agency No. 03-2475

Hearing No. 110-2004-013

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful 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 appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

affirms the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Supply Education Technician GS-7 at the agency's Atlanta/Chamblee

Career Management Learning Center facility. Complainant sought EEO

counseling and subsequently filed a formal complaint on July 25, 2003.

He alleged that he was discriminated against on the basis of his

disabilities (Osteoarthritis/Degenerative joint disease and anxiety/panic

disorder) when:

(1) the agency failed to reassign him as a reasonable accommodation

for his medical conditions;

he was subjected to harassment after requesting a reasonable

accommodation.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

initially requested a hearing, but later withdrew his request and the

case was remanded to the agency for a final decision.

In its FAD, the agency concluded that even assuming complainant is

an individual with a disability, he was not qualified because he was

unable to perform the essential functions of his job. In any event,

the agency determined that his request for a reassignment was reasonable

from a medical standpoint and it attempted to identify jobs that were

available. The agency maintains that it attempted to reassign complainant

to another location in a �light duty� position in which he would share

responsibilities with other employees. Complainant declined this offer

stating that it was not adequate as an accommodation for his disabilities.

The agency also contends it searched for vacant positions but complainant

did not qualify for many of the positions identified because he did not

have sufficient typing skills. Aside from these positions, no other

vacant positions were identified.

The agency concluded that it made reasonable attempts to locate a position

for complainant but in some instances, complainant did not fully cooperate

with its efforts. It concluded that its offer of a reassignment to a

light duty position was a reasonable accommodation and complainant's

rejection of the offer was unjustified. For these reasons, the agency

decided that it did not discriminate against complainant on the basis

of his disabilities.

On appeal, complainant offers no additional comments. The agency argues

that its decision was correct and should be affirmed. It submitted

supplemental documentation that complainant was not qualified for many of

the positions it identified in its search because he lacked typing skills.

In order to gain the protection of the Rehabilitation Act, complainant

must demonstrate that he is an individual with a disability and that

he is qualified to perform the essential functions of his position.

29 C.F.R. �1630 et. seq. A qualified individual with a disability means

one who has the requisite skill, experience, education and other job

related requirements who can perform the essential functions of a position

with or without a reasonable accommodation. 29 C.F.R. �1630.2(m).

We will assume for purposes of this decision, that complainant meets the

definition of an individual with a disability under the law. Our review

of the evidence leads us to conclude, however, that complainant did not

demonstrate that he was qualified because he was unable to work in any

position for much of the time in question. The record documents that

in response to complainant's and his physician's requests, the agency

granted various forms of leave for over a one year period. At least one

of his physicians indicated that complainant needed a leave of absence

because of his inability to work due to the combined effects of his

physical and mental conditions.

In addition, the record reflects that in October 2002, the agency offered

complainant an assignment to a position which reduced the physical

requirements expected of him. Even though complainant claims this was

not a reasonable offer, he fails to offer sufficient reasons to support

his position. We conclude this was a reasonable accommodation given

complainant's request that he be reassigned to accommodate his limited

ability to lift, walk and bend.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 18, 2004

__________________

Date