01A21334
09-09-2003
Marlin M. Swofford, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Marlin M. Swofford v. Department of Transportation
01A21334
09-09-03
.
Marlin M. Swofford,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A21334
Agency No. DOT 5-99-5014
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision (FAD) of
the agency concerning his allegation that the agency violated � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted by the Commission in accordance with 29 C.F.R. �
1614.405.
ISSUES PRESENTED
The issues presented in this appeal are whether complainant proved,
by a preponderance of the evidence, that he was discriminated against
because of his disability (uses a wheelchair) when:
1) he was not allowed to perform functions inside the Mobile Flight
Service Station unit because it was not wheelchair accessible;
2) he could not participate as a resident at air shows and aviation
events because he could not perform the functions associated with being
a resident;
3) the agency found resources previously to build/rebuild the Mobile
Flight Service Station, but he was not asked for input as to modifications
that would make the unit accessible to him; and
4) a computer keyboard was placed too high which made it difficult for
him to use.
BACKGROUND
Complainant's formal complaint was filed on November 4, 1998. Following
an investigation, complainant was provided a copy of the investigative
file and notified of his right to request a hearing before an EEOC
Administrative Judge (AJ). Although complainant initially requested a
hearing, he withdrew the request. Therefore, the agency issued a final
decision, dated October 19, 2001, which found that complainant had not
established that he was discriminated against. It is from this decision
that complainant now appeals.
The record indicates that complainant was employed as an Air Traffic
Control Specialist at the agency's McAlester Automated Flight Service
Station in McAlester, Oklahoma. The record indicates that complainant
uses a wheelchair. Although he uses a wheelchair, complainant is able
to perform all the essential functions of his position without any
accommodation from the agency. Complainant's position requires him to
provide air traffic support to pilots. This includes briefing pilots on
the weather, developing and reviewing flight plans, communicating with
airplanes when necessary, and providing emergency air traffic control
services when required.
In 1995, two agency employees, C-1 and C-2, developed the concept of a
traveling mobile station to demonstrate agency equipment and procedures
at public events, such as air shows. The Mobile Flight Service
Station (MFSS) was initially housed in a trailer that belonged to one
of the employees. C-1 and C-2 essentially performed all of the air
show demonstrations. In 1998, the facility obtained a 30-foot trailer
through the General Services Administration. In addition, $10,000.00
was provided by the agency in order to renovate the trailer to house
all of the MFSS' equipment. In renovating the trailer, a portion of
the space was retained for a living area. There were also sleeping,
eating and bathing facilities for the employees who staffed the MFSS for
particular shows. At this point, participation in the MFSS was opened
to volunteers. Employees could sign up for events as either �resident
volunteers,� who remained with the MFSS for the entire event, or �daily
workers� or �non-resident� volunteers, who work a specific shift at
an event.<1> According to the agency, a resident volunteer set-up and
tore down the MFSS, drove the tow vehicle and trailer to events, and had
operational duties. Residents also spent the night in the trailer and
provided security for the equipment. Non-residents were volunteers who
performed operational duties at events when the duration of the event
or anticipated traffic warranted additional operational staffing.
Complainant felt that the confines of the new refitted trailer made
it inaccessible to him. The outside door and inside corridor were too
narrow to accommodate his wheelchair and the bath had no safety bars.
The complainant made several suggestions to management for making
the trailer accessible to individuals in wheelchairs. The suggestions
included widening the door to the trailer, installing a wheelchair lift,
widening the corridor inside the trailer, widening the bath door, and
installing safety bars. These suggestions, however, were not implemented.
Although complainant acknowledged that participation in the MFSS program
was voluntary, he maintained that he was being deprived of exposure to
different routines. According to complainant, �I believe that everyone
who volunteers would agree that participation in these events makes our
jobs a little less boring, it offers an opportunity to get away from
the routine functions of our jobs, and it . . . helps make our jobs a
little more interesting.�
Notwithstanding the fact that participation in the MFSS is not an
essential function of anyone's position, management did make certain
modifications to assist complainant in participating as a non-resident.
For example, management re-wired the trailer to make it possible to access
radios and computers from the outside. These modifications allowed
complainant to conduct demonstrations from outside of the trailer.
Also, complainant was provided travel money so that he can stay at
motels at night. Finally, the agency noted that because MFSS events
have increased from 2 � 3 times a year to about 12 � 15, complainant
has participated as a non-resident more than any other employee.
With regard to issue (4), the record indicates that, in October 1998,
the keyboard for a computer that was sometimes used by complainant and
his co-workers was moved from its original location and placed on top of
the walk-in counter at complainant's facility. This computer was not the
one that complainant primarily used, but one that he used on occasion
when he made presentations. The keyboard was placed at complainant's
eye-level, which made it too high to be used by him without having to
move it off the counter. Complainant was concerned that he might drop
it when he moved it from the counter to his lap.
According to complainant, he asked that the keyboard be returned to its
former location, but that his request was denied. In his complaint,
complainant stated that he was told that the keyboard was moved as a
result of a decision by a union and management partnership workgroup.
Complainant indicated, however, that after speaking to a member of the
workgroup, the keyboard was placed on an �old typing table at the walk in
counter.� Complainant indicated that this was satisfactory, however, he
still could not see the computer screen. This problem was soon corrected
and, according to complainant, �I indicated that it was satisfactory.�
However, in his affidavit, complainant disputed the Station Manager's
statement that the �keyboard problem has been taken care of.� Complainant
seemed to maintained that, although the keyboard was now accessible in
that it could be taken down from the counter and placed on the table,
he was concerned that he might drop and damage it. This concern was
based on the fact that he sometimes gets muscle spasms in his legs.
Therefore, because he did not want to take a chance that he might damage
the keyboard, complainant felt that it was not truly accessible to him.
ANALYSIS AND FINDINGS
Under the Commission's regulations, an agency is required to make
reasonable accommodation for the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that the accommodation would cause an undue hardship. 29 C.F.R. �
1630.2(o); 29 C.F.R. � 1630.2(p). The Commission also notes that an
employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22,1997).
Notwithstanding the way issues 1 - 3 are delineated, the issue here
is whether complainant was denied a reasonable accommodation when the
agency failed to make the MFSS wheelchair accessible. In general, an
accommodation is any change in the work environment or in the way things
are customarily done that enables an individual with a disability to enjoy
equal employment opportunities. 29 C.F.R. Part 1630 App. � 1630.2(o).
Reasonable accommodation includes such actions as making work facilities
readily accessible, job restructuring, modifications in work schedules,
and acquisition or modification of equipment. 29 C.F.R. � 1630.2(o).
An accommodation also must be effective in meeting the needs of
the individual. In the context of job performance, this means that a
reasonable accommodation enables the individual to perform the essential
functions of the position. Finally, a reasonable accommodation allows
an employee with a disability an equal opportunity to enjoy the benefits
and privileges of employment that employees without disabilities enjoy.
An agency is not required to make accommodations that would constitute
an undue hardship on its operations. 29 C.F.R. � 1630.2(p).
After a careful review of the record, we find that complainant was denied
a reasonable accommodation by the agency. In reaching this conclusion, we
note the following: in 1997, complainant volunteered to work in the MFSS
on at least two occasions. At that time, the trailer was privately owned.
According to complainant, he had to crawl into the trailer in order to
get inside. Therefore, in 1998, when the agency obtained a new trailer
and funds were allocated for its renovation, the agency was on notice
that complainant, a volunteer, needed an accommodation that would make
the trailer accessible to him. Although the agency made modifications
that allowed complainant to access the trailer's equipment from outside,
this was not an effective accommodation because it did not meet his needs.
In this regard, we note complainant's statement regarding the first
time he entered the new trailer. According to complainant, in June
1998, he again was forced to crawl into the new trailer in order to
stay cool on a hot afternoon while at the Oklahoma City air show. Thus,
complainant does not have an equal opportunity to enjoy the same benefits
and privileges of employment that employees without disabilities enjoy.
Again, we emphasize that, in 1998, the management was fully aware of the
needs of complainant, a volunteer, but made no effort to address those
needs when it renovated the new trailer.
The agency maintained that it would have been an undue hardship on
the operations of the McAlester Automated Flight Service Station to
implement the modifications sought by complainant. The Station Manager
testified that the changes proposed by complainant would require major
modifications that would affect the structural integrity of the trailer.
Management also noted that the FAA does not provide funding for the
MFSS, although it is aware of the program. According to management,
$1500.00 a year was provided from its annual budget for the maintenance
and upkeep of the MFSS and that there are no other funds available.
We are not persuaded by the agency's position. An employer does not
have to provide a reasonable accommodation that would cause an �undue
hardship� to the employer. However, generalized conclusions will not
suffice to support a claim of undue hardship. EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act (rev. Oct. 17, 2002) at p. 54. Instead, undue
hardship must be based on an individualized assessment of the current
circumstances that show that a specific accommodation would cause
significant difficulty or expense. Id. at p. 55. Here, the record does
not indicate that the agency engaged in an individualized assessment.
The agency appears to have merely relied on the Station Manager's
assertion that the changes proposed by complainant would require major
modifications that would affect the structural integrity of the trailer.
There is no objective evidence in the record to support this conclusion.
Finally, in allocating funding to make the MFSS accessible to complainant,
the agency may not limit itself to using only the financial resources
available to its McAlester Automated Flight Service Station facility.
29 C.F.R. � 1630(p)(2)(iii).<2>
With respect to complainant's claim concerning the placement of the
computer keyboard, we find that he has not established that he was denied
a reasonable accommodation. The record indicates that complainant can
reach the keyboard when it is on the counter. Furthermore, the agency
provided a typing table on which he could place the keyboard when
he wanted to use it. Thus, the agency provided an accommodation that
would enable the complainant to safely use the keyboard while performing
an essential function of his position, i.e., preparing for briefings
and presentations. Complainant does not deny that he had access to the
keyboard. He merely speculates that, because he sometimes gets muscle
spasms in his legs, he might drop and damage the keyboard. Therefore,
we do not find that complainant's concerns amount to a failure on the
agency's part to provide a reasonable accommodation.
CONCLUSION
After a careful review of the record, including arguments and evidence
not specifically addressed in this decision, we MODIFY the FAD.
ORDER
The agency is ordered to take the following remedial action.
(1) Within 120 days of this decision becoming final, the agency, unless it
can provide objective evidence that making the MFSS wheelchair accessible
would compromise the structural integrity of the trailer in such a way
that it would create the potential of danger, shall develop a plan for
making the MFSS wheelchair accessible. This will include the common
areas of the MFSS, e.g., bathroom, kitchen facilities, and sleeping area.
The agency will then implement said plan. The agency shall provide a copy
of the plan, along with an estimated completion date, to the Compliance
Officer as set forth below.
(2) The agency shall provide training on the Rehabilitation Act to
the Station Manager and those management officials who were directly
responsible for the operation of the MFSS program from 1998 through the
present. The Commission does not consider training to be a disciplinary
action.
(3) The agency shall consider taking disciplinary action against
the Station Manager and those management officials who were directly
responsible for the operation of the MFSS program from 1998 through the
present. The agency shall report its decision. If the agency decides
to take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
(4) The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its McAlester Automated Flight Service
Station in McAlester, Oklahoma facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
____09-09-03______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The McAlester Automated Flight Service Station confirms its
commitment to comply with these statutory provisions. The McAlester
Automated Flight Service Station supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The McAlester Automated Flight Service Station was found to have
discriminated against an employee by denying him a requested reasonable
accommodation. The McAlester Automated Flight Service Station has been
ordered to, among other things, provide the employee with the requested
accommodation. Management was also directed to provide EEO training on the
Rehabilitation Act to the officials who were involved in the decision to
deny the requested accommodation. The McAlester Automated Flight Service
Station will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The McAlester Automated Flight Service Station will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1 According to complainant, he attended two air show events as a daily
worker in 1997.
2The agency is also reminded that Section 504 of the Rehabilitation Act
of 1973 requires that its facilities and public programs be accessible
to the disabled. Therefore, to the extent that the agency invites
members of the public into the MFSS, we are concerned that those who
uses wheelchairs, like complainant, are being denied access.