Larry D. Agee, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a40732 (E.E.O.C. Mar. 30, 2005)

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