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