0120050848
01-10-2007
John L. Woltjen, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
John L. Woltjen,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200508481
Hearing No. 100-2004-00087X
Agency No. P-2002-0272
DECISION
On November 2, 2004, complainant filed an appeal from the agency's October
20, 2004 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-12, Factory Manager at the agency's Federal Correctional Complex
(FCC) in Beaumont, Texas. Complainant sustained an on-the-job injury
in 1986 that required surgery to his wrist. In August 2000, complainant
underwent carpal tunnel revision, and in May 2001, he underwent left wrist
scaphocapitate fusion. As a result of complainant's May 2001 surgery,
he was out of work on Workers' Compensation from April 29, 2001, through
January 7, 2002. During his recovery period, complainant asked to be
placed in the UNICOR Warehouse where other UNICOR employees were assigned
while temporarily disabled. On August 3, 2001, the agency approved
complainant for a limited duty assignment as a Factory Manager at the FCC.
On August 7, 2001, the agency requested that complainant return to work
at the penitentiary. On December 12, 2001, complainant was notified
that he was being reassigned to Washington, D.C. On January 3, 2002,
complainant's physician cleared complainant to work full time without
restrictions. Effective March 10, 2002, complainant was reassigned as
a GS-12, Industrial Specialist in Washington, D.C.
On July 31, 2002, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability (left wrist) when:
1. On March 10, 2002, complainant's duty station was changed from
Beaumont, Texas to Washington, D.C.; and
2. Complainant was not given a nine- to twelve-month relocation period
afforded to other employees who were subjected to UNICOR relocation
assignments.
At the conclusion of the investigation, complainant was provided 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. On August 23, 2004, the agency filed a Motion for
a Decision Without a Hearing. Complainant filed a Response to Agency
Motion for a Decision Without a Hearing on September 7, 2004. Thereafter,
the AJ issued a decision without a hearing on September 14, 2004.
With regard to issue (1), the AJ noted that being able to defend oneself
and, if necessary, to restrain an inmate, were essential functions
of complainant's Factory Manager position. The AJ noted that at the
time complainant was reassigned, he could not perform these essential
functions, with or without any reasonable accommodation, and had been
unable to do so for more than a year. Thus, the AJ found complainant
was unable to work in his position.
The AJ recognized that complainant insisted the agency could have
reassigned him to limited duty work in the warehouse, as it had
temporarily done in the past when complainant had wrist surgery.
The AJ noted, however, that at the time complainant was reassigned to
the Central Office, there was no indication when, if ever, complainant
would be able to again work around inmates. The AJ stated that when a
complainant temporarily performs a set of miscellaneous tasks, this is
not a permanent position, and the agency is not required to permanently
assign those tasks as a reassignment position. The AJ noted that
complainant stated that in order to remain in Beaumont, he would have
been willing to take a demotion to another available position. However,
the AJ found there is no evidence that he conveyed this information to
the agency, or that there were any positions in the facility that did
not require at least some ability to restrain inmates or to maintain
the security of the institution. The AJ determined that although
complainant may have preferred to have been reassigned to an Industrial
Marketing Specialist position somewhere other than in Washington, D.C.,
the employer providing the accommodation has the ultimate discretion to
choose between effective accommodations. The AJ noted in this case the
agency provided complainant with a reasonable accommodation, even though
it may not have been the exact accommodation he wanted.
Finally, the AJ noted that complainant claimed the Central Office
position was created only after the agency decided to reassign him.
The AJ stated the record indicated that the position was reassigned
from FCI Englewood to the Central Office a few weeks before complainant
was transferred. However, the AJ found there is nothing improper about
reassigning a position from one office to another in order to accommodate
an employee's physical limitations.
With regard to issue (2), the AJ noted that the agency provided an
affidavit of Human Resources Administrator, Person A, who testified
that when an employee is selected for a new position, whether through
reassignment or promotion, he or she is required to report to the new duty
location within a six pay period time frame, or within approximately
three months. The agency noted the period may be extended upon a
showing of extenuating circumstances. The AJ recognized that if an
employee's position is targeted during a reorganization, restructuring,
or realignment by the agency, the employee is given an identified period
of time to apply for another position for which he is qualified. However,
the AJ stated the record showed that once the employee has applied and
is selected for a position, he must report to that position within a
six pay period time frame. The AJ determined that since complainant's
relocation was pursuant to a routine management decision, and not a
reorganization/restructuring/realignment by the agency, complainant was
not entitled to a relocation time frame greater than six pay periods.
The AJ concluded that complainant failed to demonstrate that the reasons
offered by the agency for providing complainant with a six pay period
time frame to relocate was pretextual, and that in actuality, it was
motivated by discriminatory animus towards complainant's disability.
The agency subsequently issued an October 20, 2004 final order fully
implementing the AJ's finding that complainant failed to prove that he
was subjected to discrimination as alleged. The agency claimed that the
record supports the AJ's finding that complainant failed to demonstrate he
could perform the essential functions of a Factory Manager at Beaumont.
The agency noted that the Factory Manager position requires interaction
with inmates on a daily basis, as it is primarily a law enforcement
position. The agency stated as a law enforcement officer, complainant's
duties include custody and supervision of inmates, responding to
emergencies and institutional disturbances, and assuming correctional
officer posts. The agency noted that it offered complainant a limited
duty assignment as a Factory Manager because the position did not require
physical labor. The agency noted that after the limited duty offer,
a Workers' Compensation Nurse conducted a job site walk-through during
August 2001, concerning complainant's proposed limited duty assignment.
The Workers' Compensation Nurse determined that complainant's limited
duty assignment did not require any physical labor, but noted complainant
would be in the presence of inmates, and his physical limitations might
prevent him from defending himself if necessary. The agency states
since complainant could not defend himself and restrain an inmate, it
withdrew complainant's limited duty assignment offer and as a result
complainant never worked in the limited duty assignment as a Factory
Manager at FCC.
Additionally, the agency noted that even if complainant had been
determined to be a qualified individual with a disability, he failed to
establish that the agency discriminated against him based on disability
when it reassigned him to Washington, D.C. The agency notes that policy
requires all inmates to work unless they are medically unassigned;
therefore, inmates are in all areas of the institution including the
warehouse. The agency stated that the Associate Warden of Industries
stated that the only UNICOR position where inmates were not present and
where complainant could maintain his current grade was the Industrial
Specialist position. The agency claims the record establishes that
complainant was transferred to the UNICOR position to accommodate his
physical limitations.
Further, the agency noted that complainant's position contained a mobility
agreement which provided for the geographic relocation of staff in the
interest of the efficiency of the service. The agency noted that the
Chief Operating Officer stated that complainant was transferred because
there was a vacancy as an Industrial Specialist position that required
a person with complainant's expertise and field experience.
With regard to issue (2), the agency explained that if an employee is
reassigned or relocated to another position resulting from the agency's
reorganization/restructuring/realignment, the employee is given an
identified period of time to apply for another position for which they
are qualified. The agency policy states that once the employee is
selected for a new position, the employee is given a six pay period
time frame to report to the new duty station. The agency noted in
this case that complainant's reassignment was a management decision to
relocate complainant to a different duty station. The agency stated
that since complainant's reassignment was not subject to a UNICOR
relocation/restructuring/realignment, he was allowed six pay periods
to report to his new position. The agency argued complainant cannot
show that the agency's reasons for granting only six pay periods for
the relocation assignment are a pretext for discrimination.
On appeal, complainant argues that the agency took the premise that he
was never going to be fully recovered to return back to the Beaumont
facility and reassigned him to accommodate his physical limitations.
Complainant notes that one month after his reassignment, the agency
received a letter on January 11, 2002, from his surgeon indicating that
complainant had reached maximum medical improvement. Complainant claims
the agency improperly perceived his limitations as being long term.
He states that the agency noted that he was restricted from restraining
inmates, but ignored the fact that he was returned to full duty with
no restrictions in January 2002. Complainant states the agency's
December 10, 2001 reassignment letter should no longer have been valid
once complainant was cleared in January 2002, and he states he should
have remained at his Beaumont duty station. Complainant states that in
transferring him to the Industrial Specialist position in Washington,
D.C., the agency paid expenses for relocating, house hunting, realty
financing, and diverse expenses for three agency employees, which
complainant claims is evidence of pretext.
Additionally, complainant claims that the agency's August 3, 2001
limited duty assignment as a Factory Manager did not meet his surgeon's
restrictions. Complainant states that the UNICOR Warehouse is located
outside the penitentiary and is staffed by UNICOR personnel along with
inmates from the camp facility ("campers"). Complainant states there
is no evidence that he would have been placed into the Washington,
D.C. change of duty location other than to accommodate his physical
limitations.
ANALYSIS AND FINDINGS
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.
The Commission determines that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. The AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies and laws. We will assume for purposes of our analysis, that
complainant is an individual with a disability; however, we conclude
based on a review of the record, that complainant has not shown he is
qualified. A "qualified individual with a disability" is an individual
with a disability who satisfies the requisite skill, experience,
education and other job related requirements of the employment position
such individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of the position.
29 C.F.R. � 1630.2(m).
In the present case, the record reveals that in an August 1, 2001 letter
complainant's doctor stated complainant could work limited duty with
a splint and provided a 10-pound lifting restriction. Additionally,
the doctor noted that he is "concerned about [complainant] restraining
inmates, and I think that would be difficult for him to do in his current
condition" and the doctor made that a restriction on complainant's return
to work. Further, we note that on August 16, 2001, complainant underwent
a Functional Capacity Evaluation. After completing the examination,
complainant's physical therapist concluded complainant would be able to
return to work, "provided that there is a job which matches the surgeon's
restrictions as written. If employee is in an environment in which he
may have to defend himself or restrain an inmate, then he does not meet
the criteria." The record is clear that the Factory Manager position
requires that the "incumbent must be prepared and trained to use physical
control in situations such as fights among inmates, assaults on staff,
and riots or escape attempts." "An employer does not have to eliminate
an essential function, i.e, a fundamental duty of the position, in order
to accommodate an individual with a disability." EEOC's Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, No. 915.002 at p.9, 29 (rev. October 17,
2002)(Enforcement Guidance). We note that complainant did not submit
contradicting medical evidence surrounding his abilities to perform
the essential functions of his position with or without accommodation
prior to the agency's decision to transfer him to Washington, D.C.2 We
find that at the time the agency ordered complainant's transfer, the
record supported the agency's contention that complainant was unable to
perform the essential functions of his Factory Manager position. Thus,
we find that the agency, at the time it ordered complainant's transfer,
properly determined that complainant was not a "qualified individual"
under the Rehabilitation Act.3 Moreover, there is no evidence that there
were any positions in Beaumont that did not require at least some ability
to restrain inmates or to maintain the security of the institution.
When an individual with a disability cannot be accommodated in their
current position, an agency is then obligated to consider the availability
of a reassignment as an accommodation. When provided as a reasonable
accommodation, a reassignment must be to a vacant position equivalent
in terms of pay, status, and other related factors, including benefits,
if the employee is qualified for the position. See Enforcement Guidance.
If there are no vacant equivalent positions, then an agency may consider
reassigning the individual to a vacant lower level position. Id.
In the present case, it is evident, at the time the agency decided to
reassign him, that complainant was unable to perform the essential
functions of his position, namely the ability to restrain inmates.
Accordingly, we find that the agency properly took the next step and began
to search for vacant positions for complainant. Although complainant
states he would have taken a demotion in order to remain in Beaumont,
there is no evidence that there was a vacant position in the facility
that did not require at least some ability to restrain inmates. As a
result, the agency reassigned complainant to an Industrial Specialist
position, at the same grade level as his Factory Manager position.
Although complainant may have preferred to have been reassigned to an
Industrial Specialist position somewhere other than Washington, D.C.,
the employer providing the accommodation has the ultimate discretion
to choose between effective accommodations. 29 C.F.R.� 1630.9; see
also Enforcement Guidance, Question 9. We note that in this case, the
agency provided complainant with a reasonable accommodation, even though
it may not have been the exact accommodation that complainant wanted.
With regard to complainant's claim that he was not afforded a nine
to twelve month relocation period, we note that complainant's
transfer was a result of a management reassignment and not a
reorganization/restructuring/realignment by the agency. The record
contains evidence that it is the agency policy to permit a staff member
to report to a new duty location within a six pay period time frame,
the equivalent of up to 12 weeks. Complainant has not shown that the
agency's reason for granting him only six pay periods to relocate are a
pretext for discrimination or that agency officials were motivated by
discriminatory animus. Therefore, upon review we discern no basis to
disturb the AJ's findings of no discrimination.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED.
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
January 10, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that complainant, subsequent to the agency's decision to
transfer him, submitted a letter from his doctor dated January 3, 2002,
stating that complainant has reached maximum medical improvement and
is "going to be cleared to work full-duty without restrictions." The
letter noted that complainant would be given an impairment rating under
"separate cover." In a January 11, 2002 letter, complainant's doctor
stated complainant is "assigned 12% impairment due to loss of range of
motion of the left wrist which is deemed permanent." The doctor noted
this is converted to a whole person impairment of 7%. The Commission
does not find that this January 2002 correspondence altered the prior
medical evidence such that one could conclude that complainant could
perform the essential functions of the position.
3 We do not decide whether complainant is a disabled individual.
We only decide that complainant failed to show the agency at the time
of the alleged denial of accommodation that he was qualified to perform
the essential functions of the position with or without a reasonable
accommodation.
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0120050848
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036