[Redacted], Harvey G., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Oct 20, 2022

Appeal No. 2022000813 (E.E.O.C. Oct. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey G.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022000813 Hearing No. 570-2021-00025X Agency No. 2020-28628-FAA-02 DECISION On October 27, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final order2 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 During the relevant time, Complainant worked as a Hazardous Material Safety Specialist at the Agency’s Security Field Office in Winchester, Virginia. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The Agency failed to independently issue a final order. As such, the AJ’s decision became the Agency’s final action by operation of 29 C.F.R. § 1614.109(i). 2022000813 2 On November 4, 2019, Complainant contacted an EEO Counselor and filed a formal EEO complaint on August 18, 2021, alleging that the Agency discriminated against him on the basis of disability (PTSD, anxiety, migraines, and a knee injury) when: 1. Since June 2019, management has failed to provide him with a reasonable accommodation; and 2. In October 2019, he was not considered for the Staff Assistant position. The Agency accepted the complaint and conducted an investigation into its claims. Complainant stated that he has diagnosed disabilities of migraines, depression, anxiety, Post- Traumatic Stress Disorder (PTSD), knee injury. Report of Investigation (ROI) at 104. He reported that he has migraines three to five days per month. Some of these migraines, he reported, were prostrating migraines, which required that he lie down in a dark room. ROI at 105. He said that when something reminds him of combat, or when he is away from home, his PTSD is triggered, his anxiety is exacerbated, and he becomes agitated; his irritability interferes with his work. ROI at 105-6. He stated that his PTSD and anxiety are never in remission. ROI at 105. Complainant proffered that, prior to 2019, his conditions did not affect his ability to perform his work. ROI at 106. An increase in driving, however, changed that. He stated that in 2018, he had 50 inspections, with 42 of those being within two and one-half hours of his house. ROI at 106. In 2019, of 41 inspections, only 27 were within two and one-half hours of his house and, in 2020, most of his inspections required a three-to-four-hour drive. ROI at 106. Complainant said that he sought an accommodation to minimize non-essential driving from his home near Allentown, Pennsylvania, to the Agency’s office in Winchester, Virginia. He asked not to be required to do work at the office which he could do at his home. ROI at 106. He explained that driving three hours or more exacerbated his migraines, PTSD, and anxiety. ROI at 106. On June 19, 2019, Complainant emailed Manager a request to “relocate to the Philadelphia office under a hardship due to family and medical issues.” ROI at 37. On July 2, 2019, he modified his request to include being assigned to one of the staff assistant positions, which he believed would allow significant telework. ROI at 42, 107. Complainant asserted that he received no decision on these reasonable accommodation requests. ROI at 107. Complainant averred that, in July 2019, he drafted a specific reasonable accommodation request with three possible options: (1) telework as a Hazardous Materials Inspector; (2) relocation to Allentown, Pennsylvania (approximately 20 minutes from his home); or (3) transfer to another acceptable position somewhere where full-time telework was available. ROI at 106-7. Manager asserted that Complainant was offered, and declined, an accommodation in the form of a transfer to the Philadelphia office in 2019. ROI at 120-21. Complainant countered, however, that he never received what he believed to be a formal offer. 2022000813 3 Rather, he said that Manager offered to consider making the transfer to Philadelphia if Complainant removed his request for a staff assistant or telework position. ROI at 115. Complainant further stated that he requested that any offer be in writing, and no such offer was relayed. ROI at 115. Manager stated that there were no staff assistant positions available in his office to offer Complainant. ROI at 125. Supervisor Safety Inspector confirmed that the office had no such positions. ROI at 131. Rather, the positions had been previously eliminated, and the responsibilities of the positions were distributed among existing employees. ROI at 131. Complainant countered that people in his office were selected for these positions, seemingly randomly, including Coworker (CW), who was diagnosed with a disability after his selection. ROI at 108. CW confirmed that, in the fall of 2018, before Complainant requested the assignment to the staff assistant position as a reasonable accommodation, he was notified that he would maintain his position title, and the responsibilities of it, but his job functions would change. ROI at 168. Supervisor Safety Inspector averred that these were individuals with the same job description and position as Complainant but were assigned different duties. She noted that CW, however, does not report to Manager. ROI at 131, 143. Supervisory Safety Inspector affirmed that the office had no full-time teleworkers. ROI at 131. On October 29, 2019, Manager provided leave forms in anticipation of Complainant’s knee surgery, and requested Complainant provide supporting medical documentation to afford him leave pursuant to the Family and Medical Leave Act (FMLA). ROI at 51, 121. Complainant provided the information on November 8, 2019. ROI 51. On November 12, 2019, Complainant confirmed that he would work 20 hours per week and submit leave requests for the remaining 20 hours until he exhausted his leave. ROI at 50. On November 12, 2019, the Agency issued a letter to Complainant, in which they informed Complainant that the November 6, 2019 surgery on his knee directly impacted the conditions relevant to his reasonable accommodation request. ROI at 54, 209. As such, Manager concluded that he had insufficient information to determine what permanent accommodations could be offered until his medical condition after recovery could be determined. ROI at 54, 209. The Agency did, however, offer Complainant an interim accommodation during his recuperation in the form of 20 hours per week of telework and approved leave for the remaining 20 hours. ROI at 55, 210. Manager affirmed that his intent was to continue the interactive process once Complainant returned from surgery. ROI at 55, 210. On January 22, 2020, Manager sent letters to Complainant’s medical providers, seeking information regarding Complainant’s reasonable accommodation request. ROI at 234-35. On March 3, 2020, Manager sent a letter to Complainant, in response to a reasonable accommodation request made by Complainant’s attorney on February 7, 2020. ROI at 236. Numerous communications between Agency Counsel and Complainant’s Counsel indicated negotiations were ongoing, affirming Complainant was, at that point, teleworking full-time due to the COVID pandemic, but was planning for the lifting of this policy. ROI at 240-48. 2022000813 4 Manager alleged that Complainant declined to continue to participate in the interactive process once he returned from surgery, opting to forgo the interactive process so as to proceed with the instant complaint. ROI at 122. Complainant said that he did not refuse to participate in the interactive process. ROI at 117. Rather, he refused to start the process over once he returned from surgery. ROI at 117. At the conclusion of the EEO investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). However, the Agency filed a motion for summary judgment. The AJ agreed with the Agency’s motion that there were no genuine issues of material fact and issued a decision without a hearing. The AJ found that Complainant did not prove that the Agency discriminated against him, nor did he prove that it failed to provide him with a reasonable accommodation for his disabilities. The AJ determined, in relevant part, that the Agency entered into a good faith reasonable accommodation interactive process with Complainant. The AJ found that the Agency’s delay of the reasonable accommodation process on November 12, 2019, was not improper because a “reasonable accommodation request would need to wait until Complainant recovered from surgery because the condition of his knee directly affected his reasonable accommodation eligibility.” Notice of Proposed Summary Judgment (Notice) at 5. Moreover, the AJ found that the Agency attempted to accommodate Complainant, stating: “the Agency offered Complainant a position in Philadelphia, but Complainant declined this offer. Although Complainant stated he wanted either Allentown [Flight Standards District Office] or be able to telework in his existing position full time, he failed to show how the accommodations offered by the Agency were not effective in meeting his needs.” Notice at 5-6. Finally, as to the matter of not being considered for a staff assistant position, the AJ noted that no such positions existed at the Agency. Notice at 11. When the Agency did not issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action. See 29 C.F.R. § 1614.109(i). This appeal followed. On appeal, Complainant contends that summary judgment was improper because there remain material facts in question that require additional discovery. Specifically, Complainant’s counsel asserts that the AJ’s findings that, among other things, “the Agency was still open to finding reasonable accommodations that would work for Complainant,” and “the Agency offered Complainant a position in Philadelphia, but Complainant declined this offer,” were material facts that the AJ erred in finding as undisputed. The Agency argues that summary judgment was appropriate, as no further record development is necessary. Moreover, the Agency asserts that Complainant has not established a prima facie case of disability discrimination and that the Agency did not fail to accommodate Complainant. 2022000813 5 ANALYSIS AND FINDINGS 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, as outlined below, a reasonable fact-finder could not find in Complainant’s favor. As such, the Commission finds that the AJ was proper in issuing summary judgment. Denial of Reasonable Accommodation An agency must make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). 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, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2(n). 2022000813 6 A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at § I630.2(n)(3). The complainant has the initial responsibility of showing that a suggested accommodation is “reasonable” (i.e., that is generally plausible in the job being performed by the individual). See U.S. Airways. Inc. v. Barnett, 535 U.S. 391 (2002), EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance) No. 915.002 (Oct. 17, 2002). While this is not a high burden for the complainant, it is an initial plausibility threshold that the complainant must meet. Once the complainant shows that the requested accommodation is plausible, the burden then shifts to the agency to show whether the accommodation, even if plausible, would nonetheless impose an undue hardship (i.e., a significant difficulty or expense) on the operations of the agency. See Harge v. Dep't of Vet. Aff., EEOC Appeal No. 0120111521 (Dec. 4, 2014). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance No. 915.002, see also, Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Improper termination of the interactive process constitutes an improper denial of a reasonable accommodation. See Harvey G. v. Dep't of the Interior, EEOC Appeal Nos. 0120132052 & 0120150844 (Feb. 4, 2016). In the instant case, we assume for purposes of analysis that Complainant is a qualified individual with a disability. However, for the reasons set forth below, we find that the Agency did not violate the Rehabilitation Act. In claim 1, Complainant requested three possible accommodations: (1) telework as a Hazardous Materials Inspector; (2) relocation to Allentown, Pennsylvania; or (3) transfer to another acceptable position somewhere where full-time telework was available. The record demonstrates that the Agency entered into an interactive process with Complainant but, on November 12, 2019, put the process on hold due to Complainant’s pending knee surgery. While an unnecessary delay in providing an effective reasonable accommodation can indicate bad faith and result in a violation of the Rehabilitation Act, the Commission finds that no such unnecessary delay was demonstrated in this case. Enforcement Guidance at Q. 10; Yessenia H. v. Dep't of Vet. Aff., EEOC Appeal No. 0720070027 (Oct. 13, 2015). 2022000813 7 In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay; (2) the length of the delay; (3) how much the individual with a disability and the agency each contributed to the delay; (4) what the agency was doing during the delay; and (5) whether the required accommodation was simple or complex to provide. Id. To element 1, the reason for the delay was because Complainant had knee surgery, a disability claimed on his reasonable accommodation request, and the Agency was unaware of how the surgery would affect Complainant’s medical condition or needs. ROI at 55. To element 4, it is undisputed that, during his recovery, Complainant was provided a temporary accommodation. The length of the delay was to be finite, until Complainant recovered from his surgery, addressing element 2. As such, based on the circumstances of this case, the Commission finds that the Agency did not unnecessarily delay responding to Complainant’s request for a reasonable accommodation. See McKenzie v. Dep’t of Justice, EEOC Appeal No. 0120100034 (July 7, 2011) (finding that delaying the reasonable accommodation process to obtain additional necessary medical evidence did not constitute and unreasonable delay of the interactive process). It is not disputed that, after Complainant returned from knee surgery, Complainant refused to engage in the interactive process with the Agency. Whether it was a resumption or a new negotiation, Complainant conceded he did not engage in the process the Agency afforded. As such, the Commission finds that Complainant terminated the interactive process, himself, and any delay or denial of a reasonable accommodation is neither fault nor indicia of bad faith on the part of the Agency. Furthermore, in claims 1 and 2, Complainant requested a reassignment to the Philadelphia office, a position in Allentown, reassignment to a position that permitted telework, or to the staff assistant position. The Commission also recognizes that the discussion of “qualified” does not end at complainant’s position. The term “qualified individual with a disability,” with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers. Accordingly, the agency should consider reassignment. Enforcement Guidance; see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). Complainant, however, has an evidentiary burden in such reassignment cases to establish that it is more likely than not (preponderance of the evidence) that there were vacancies during the relevant time period into which complainant could have been reassigned. Complainant can establish this by producing evidence of particular vacancies. However, this is not the only way of meeting complainant’s evidentiary burden. 2022000813 8 In the alternative, complainant need only show that: (1) he or she was qualified to perform a job or jobs which existed at the agency, and (2) there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. See, e.g., Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002); Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997). In this case, Complainant has provided no evidence of either an existing vacancy or trends or patterns of turnover making a vacancy likely in the Philadelphia or Allentown locations or to any other position that permitted telework. As such, he has not met his burden in demonstrating that reassignment was a proper reasonable accommodation in his case. With regard to the claim that he wished to be provided a position as a staff assistant, the evidence indicates that these positions were not in the office in which Complainant worked. CW and other individuals were assigned the duties of the position in the fall of 2018, prior to Complainant making this request. An Agency is not required to reassign Complainant to a position, or to job responsibilities, if that position is already filled. See O’Connor v. Dep’t of the Navy, EEOC Appeal No. 0120111876 (Jan. 31, 2013). Moreover, as outlined above, protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Manager made clear to Complainant that there was not more than 20 hours of available administrative work that was telework capable available within the confines of his position with the Agency. ROI at 55. An agency is under no obligation to allow an employee to permanently perform nonessential duties. See Spry v. U.S. Postal Serv., EEOC Petition No. 03980078 (Dec. 11, 1998) (an agency is not required to eliminate essential function from a position). As such, while Complainant requested a staff position, that position no longer existed, and the duties were already begin performed by CW who worked under a different management official. Further, Complainant has not argued that the reassigned duties were essential job functions of his position. In light of the above, Complainant has not proven that the Agency denied him a reasonable accommodation or that the Agency delayed a reasonable accommodation in bad faith, and the Commission finds that the Agency is not in violation of Rehabilitation Act. CONCLUSION Therefore, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2022000813 9 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 2022000813 10 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 20, 2022 Date