01a40732
03-30-2005
Larry D. Agee, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Larry D. Agee v. Department of the Navy
01A40732
March 30, 2005
.
Larry D. Agee,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40732
Agency No. 03-00187-006
Hearing No. 120-2003-00480X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) 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
order.
The record reveals that complainant, a Maintenance Supervisor at the
agency's Norfolk, Virginia facility, filed a formal EEO complaint on
October 21, 2002, alleging that the agency discriminated against him on
the basis of disability and in reprisal for prior EEO activity when on
September 17, 2002, the agency denied him reasonable accommodation when
it did not allow him to use a government vehicle with tinted windows to
attend an agency event.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency moved for a decision without
a hearing. Without doing any independent analysis, the AJ fully adopted
the agency's findings of fact and conclusions of law and issued a decision
without a hearing, finding no discrimination. The agency's final order
implemented the AJ's decision. Complainant makes no new contentions on
appeal, and the agency requests that we affirm its final order.
The record reveals that the agency held an All American Day celebration
at the Botanical Gardens in Norfolk, Virginia on September 17, 2002.
The event featured multi-cultural demonstrations and educational exhibits.
The agency provided bus transportation for all employees to attend
the event.
The record further reveals that complainant was seriously burned in a
1994 accident. In an investigative affidavit, complainant stated that
he wears special garments to protect him from sunlight because he must
restrict his exposure to the sun. He stated that because of his burns,
he is also impaired in his ability to perspire. He stated that he uses a
government vehicle with tinted windows when he travels to different work
sites because of his medical restrictions requiring him to use vehicles
with tinted windows and air conditioning. He stated that he inspected
the agency bus that was used to transport employees before the event
and noticed that the vehicle had no tinted windows nor air conditioning.
He stated that when he asked to use the agency vehicle, his supervisor
responded that he could use his personal vehicle to attend the event.
He estimated that the event was approximately thirty five minutes away
from his work site, and the temperature that day was around 85 degrees.
He also stated that his personal vehicle has tinted windows and air
conditioning. Complainant did not attend the event.
In an investigative affidavit, complainant's first-line supervisor stated
that on the morning of the event, complainant requested that he use a
government vehicle to attend the celebration. He stated that he felt
that because the event was far from the base, it would be inappropriate
for him to use an agency vehicle. �There's been a lot of controversy on
inappropriate use of government vehicles within the command, and I just
thought it may be questionable, and I made the determination at that
time that none of my supervisors would drive a government vehicles,�
he stated. He stated that he advised complainant to take the agency
bus or his personal vehicle to the event. He stated that he did not
personally approve use of agency vehicles for the event, but saw other
government vehicles at the event.
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. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Reasonable Accommodation
Under the Commission's regulations, an agency is required to reasonably
accommodate the known limitations of a qualified individual with a
disability, unless the agency can show that accommodation would cause
an undue hardship. See 29 C.F.R. 1630.2(p); EEOC's Enforcement Guidance
on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (revised October 17, 2002) (Guidance). In the context of
providing an accommodation, undue hardship means significant difficulty or
expense incurred by the agency. 29 C.F.R. � 1630.2(p)(1). The Guidance
allows an agency to choose among reasonable accommodations as long
as the chosen accommodation is effective, and states that, while the
preference of the individual with a disability should be given primary
consideration... [the agency] has the ultimate discretion to choose
between effective accommodation. See Guidance, Question 9, pp. 8-9;
also see 29 C.F.R. Part 1630 app. 1630.9 (1997).
As an initial matter, we assume arguendo that complainant is a qualified
individual with a disability entitled to coverage under the Rehabilitation
Act. Upon review of complainant's accommodation claim, we note that
although complainant's supervisor denied complainant's request to use the
agency vehicle to travel to the event, complainant's supervisor offered
him the option of taking the agency bus or driving his personal vehicle.
We also note that complainant could have submitted a travel voucher
for the round-trip costs incurred if he had driven himself in his own
vehicle. Complainant affirmed that his personal vehicle has tinted
windows and air conditioning, consistent with his medical restrictions.
While it is clear that complainant did not receive the accommodation of
his choice, it is ultimately within the agency's discretion to choose
between effective accommodations. See Polen v. Department of Defense,
EEOC Appeal No. 01970984 (January 16, 2001). Allowing complainant to
drive to the event in his personal vehicle and agreeing to reimburse
him for the costs incurred was an effective accommodation in this case.
Accordingly, we conclude that the agency did not deny complainant
reasonable accommodation.
Disparate Treatment
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this matter, complainant's supervisor responded that he did not
allow any of the employees supervised by him to use the agency vehicle
to drive to the event because there had been controversy about the use
of government vehicles in the agency and he felt use of the vehicles to
attend the off-base event would create the perception that employees were
misusing agency vehicles for unauthorized purposes. Complainant responded
that other employees drove agency vehicles to the event. However, the
record reveals that these employees were not supervised by the same
person who supervised complainant and were in a different work unit.
Consequently, we find that complainant failed to present any evidence
from which a reasonable fact-finder could conclude that the agency's
proferred legitimate, non-discriminatory reasons for its actions were
pretext for unlawful disability based discrimination or reprisal.
Therefore, after a careful review of the record, the Commission finds
that the issuance of a decision without a hearing was appropriate, as
no genuine dispute of material fact exists. Construing the evidence to
be most favorable to complainant, we conclude that complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's disability or by retaliatory
animus. The agency's final order is hereby 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:
______________________________ __March 30, 2005________
Carlton M. Hadden, Director Date
Office of Federal Operations