01A00936
03-20-2003
Raymond E. Caruthers, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Raymond E. Caruthers v. Department of the Army
01A00936
March 20, 2003
.
Raymond E. Caruthers,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A00936
Agency No. BKEK9609G0490
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.<1> 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 Construction Representative, GS-0809-11, at the agency's Directorate
of Public Works, Fort Chaffee, Arkansas facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on December
4, 1996, alleging that the agency discriminated against him on the
basis of disability (heart disease<2>) when it withdrew a Priority
Placement Program offer for the position of Construction Representative,
GS-0809-11, with the Army Corps of Engineers, Fort Campbell Resident
Office, Clarksville, Tennessee.
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
requested that the agency issue a final decision. The agency issued a
decision finding no discrimination.
The salient facts of the case are not contested. Complainant was
employed at Fort Chaffee, which was designated to be closed. Complainant
registered with the Civilian Assistance and Re-Employment (CARE) Priority
Placement Program(PPP), and informed the PPP Coordinator of his medical
condition. Personnel servicing was provided by the Fort Sill, Oklahoma
Civilian Personnel Office, now known as the Civilian Personnel Advisory
Center (CPAC).
The Corps of Engineers (COE) offered complainant the position of
Construction Representative at Fort Campbell. Following the offer,
complainant inquired of CPAC as to the physical requirements of the
position, and provided CPAC with the results of a physical evaluation
conducted by his physician. COE provided CPAC with the physical
requirements of the position. CPAC informed complainant that he would
have to undergo a medical evaluation, which it offered to provide at
its expense. Complainant instead chose to be re-evaluated by his own
physician, Dr. JMD, who reported the following limitations: lifting 0-10
pounds, up to 8 hours intermittently; lifting 10-20 pounds, up to two
hours intermittently; lifting 20-30 pounds, up to one hour intermittently;
no lifting over 30 pounds; sitting and standing, each up to 8 hours
continuously; walking, up to two hours intermittently; climbing stairs,
up to one hour intermittently; no climbing ladders; kneeling, bending, and
stooping, up to one-half hour each intermittently; no twisting, pushing,
or pulling; simple grasping and fine manipulation, each up to 8 hours
intermittently; only �brief� reaching above the shoulder; only �brief�
exposure to temperatures above 100 degrees; exposure to temperatures below
50 degrees, up two hours intermittently; exposure to excessive humidity,
up to one hour intermittently; no exposure to chemicals or solvents;
exposure to fumes, dust, and noise, one-half hour intermittently. Dr. JMD
subsequently stated that he was not provided specific information about
complainant's actual work conditions in either his present or proposed
positions, and so assessed complainant's limitations on a �worst case�
basis, i.e., assuming that complainant would work without assistance,
protective clothing, rest breaks, and the like. It is noted, however,
that Dr. JMD was provided with a statement of the functional requirements
and environmental factors for the position. CPAC forwarded Dr. JMD's
response to COE.
Based on the information provided by CPAC, COE determined that
complainant's limitations could not be reasonably accommodated, and
requested that the job offer be withdrawn. In this regard, the COE
Supervisor who established the requirements for the position, and who
actually determined that complainant was not medically qualified for the
position, noted that the position involved supervision of construction of
multi-storey buildings, and as such, its requirements included climbing
of ladders and stairs and exposure to heat and cold. The COE Supervisor
noted that these requirements were inherent in the duties of the position,
and could not be eliminated.
After COE requested withdrawal of the job offer, but before a final
decision had been made, complainant submitted to CPAC a statement from
his supervisor at Fort Chaffee. Complainant's supervisor stated that
complainant was performing the duties of a Construction Representative
in a satisfactory manner,<3> and that the supervisor had not �knowingly
accommodate[d]� complainant in the performance of his duties. However,
the Personnel Assistant working on this matter stated that she did not
forward this information to COE because COE had already requested to
withdraw the offer. The Personnel Assistant indicated that she believed
the supervisor's statement contradicted Dr. JMD's assessment, and that
complainant's supervisor in fact had been accommodating complainant's
condition.<4>
CARE granted COE's request to withdraw the job offer. The CARE Staff
Officer who processed and approved the withdrawal request stated that
he based his decision on the information provided by COE. He noted that
if he had been aware of the statement from complainant's supervisor, he
would have investigated the matter further before approving the withdrawal
request. Likewise, the COE Supervisor stated that he, too, would have
investigated further before requesting withdrawal of the job offer if
he had been aware of the statement provided by complainant's supervisor.
CPAC notified complainant that the job offer had been withdrawn,
and offered him a position as an Engineering Technician, GS-0802-11,
at Fort Rucker, Alabama which it apparently believed met complainant's
medical restrictions. Complainant rejected that offer, but ultimately
accepted another position as a Construction Representative with the
transition team at Fort Chaffee.
In order to establish a disability discrimination claim under the
Rehabilitation Act, a complainant must demonstrate that: (1) he is
an �individual with a disability�; (2) he is �qualified� for the
position held or desired, i.e. can perform the essential functions
with or without accommodation; and (3) he was subjected to an adverse
employment action because of his disability. See Swanks v. WMATA,
179 F.3d 929, 934 (D.C.Cir. 1999); Heyman v. Queens Village Committee
for Mental Health for Jamaica Community Adolescent Program, 198 F.3d
68 (2d Cir. 1999). Where the agency denies that its decisions were
motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Swanks, 179
F.3d at 933. Under this analysis, in order to establish a prima facie
case, complainant must demonstrate that: (1) he is an �individual with
a disability�; (2) he is �qualified� for the position held or desired,
i.e. can perform the essential functions with or without accommodation;
and (3) he was subjected to an adverse employment action. Swanks,
179 F.3d at 933. The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
The Commission finds that complainant is not an �individual with a
disability� within the meaning of the Rehabilitation Act. In order
to establish that he is an �individual with a disability,� complainant
must show that he has, has a record of, or is regarded by the agency as
having a medical condition which causes him to be substantially limited
in his ability to perform one or more major life activities. A �major
life activity� is one of those basic activities that the average person
in the general population can perform with little or no difficulty.
Appendix to 29 C.F.R. Part 1630, Section 1630.2(i). �Substantially
limited� refers to significant restriction on an individual's ability
to perform a major life activity as compared to the average person in
the general population). 29 C.F.R. � 1630.2(j); Hawkins v. United State
Postal Service, EEOC Petition No. 03990006 (February 11, 1999).
Here, the restrictions on complainant reported by Dr. JMD, in relevant
part, are that he can walk intermittently for up to two hours per day;
climb stairs intermittently for up to one hour per day; cannot climb
ladders; can be exposed to extremes of heat only briefly each day;
and can be exposed to extremes of cold intermittently for up to two
hours per day. Although walking is a major life activity, 29 C.F.R. �
1630.2(i), the Commission finds that a limitation of an aggregate of two
hours of walking throughout the workday does not constitute a significant
restriction as compared to the average member of the general population.
See Blake v. United States Postal Service, EEOC Appeal No. 07A10067
(September 10, 2002). Further, while complainant has restrictions
in his ability to climb stairs and ladders, and in his tolerance of
exposure to extreme heat and cold, he has not demonstrated that he is an
individual with a disability based on these limitations. See 29 C.F.R. �
1630.2(j); Appendix to Part 1630, Section 1630.2(i). Therefore, based
on the evidence presented, complainant has not established that he has
a disability. Moreover, there is insufficient evidence in the record
to establish either that complainant has a record of a disability<5>,
or that the agency regarded complainant as disabled, i.e., substantially
limited in a major life activity.<6>
Based upon the foregoing, the Commission finds that complainant is not an
�individual with a disability.� Accordingly, complainant is not entitled
to coverage under the Rehabilitation Act, and therefore cannot establish
a prima facie case of disability discrimination. It is therefore the
decision of the Equal employment Opportunity Commission to AFFIRM the
agency's final decision.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 20, 2003
__________________
Date
1This is the second appeal in this case. Previously, the Commission
reversed a final agency decision dismissing the complaint as moot.
Raymond E. Caruthers v. Department of the Army, EEOC Appeal No. 01975547
(May 8, 1996).
2Complainant's condition, as diagnosed by his physician, is
�Arteriosclerotic Heart Disease, Old Myocardial Infarction, Angina.�
3In fact, the supervisor provided a glowing recommendation of
complainant's abilities.
4Although the supervisor stated that he did not �knowingly accommodate�
complainant's condition, his statement reflects that to some extent
complainant was able to plan his field work to �work around being
exposed to the elements at the critical times of the day,� and that there
usually was a junior inspector available at the work site to assist him,
if needed. These considerations in fact might be constitute �reasonable
accommodation.� Nonetheless, the supervisor was adamant that complainant
performed the full range of his duties.
5The statement from complainant's supervisor indicates that complainant
was off work for some period of time in 1988 for heart surgery, but the
record does not contain any information regarding the extent or duration
of complainant's limitations at that time.
6Although the agency regarded complainant as unable to perform the
specific job which he had been offered, the evidence does not support a
finding that the agency regarded complainant as substantially limited
in the major life activity of working, i.e., significantly restricted
in performing a class of jobs or a broad range of jobs. See 29 C.F.R
� 1630.2(j)(3)(i).