0120060091
11-14-2007
William P. Hovell, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
William P. Hovell,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200600911
Agency No. 046837010813
DECISION
On September 30, 2005, complainant filed an appeal from the agency's May
31, 2005, final decision 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
On November 26, 2003, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of disability when his October
11, 2002 request for reasonable accommodation to the Office of the Judge
Advocate General (JAG) was never formally considered or responded to.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). The agency issued
a final agency decision (FAD) pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
The FAD found the following: on August 31, 1998, complainant was hired
as an Attorney- Advisor, GS-905-13, at the Activity, and was assigned
to the Claims Department, Federal Torts Division. On March 28, 2002,
the Supreme Court of Arizona disbarred complainant for "conduct in
violation of his duties and obligations as a lawyer," in regard to
his misconduct related to the closing of his private law practice in
that state. On June 5, 2002, the State Bar of Arizona sent a copy of
complainant's disbarment order to the Navy's Judge Advocate General
(JAG) Administrative Law Division. On June 19, 2002, the Activity's
former Commanding Officer revoked complainant's previous settlement
authority, and limited his delegated authority to adjudicating claims,
including negotiating claims for settlement subject to the approval of
the Chief Claims Officer, which fell under the Federal Tort Claims Act
and the Military Claims Act. On August 5, 2002, the JAG Rules Counsel
initiated an ethics investigation of complainant pursuant to the JAG
regulations and procedures concerning rules of professional conduct
for attorneys who practiced law under the cognizance and supervision
of the JAG ("Rules"). Complainant did not dispute the allegations of
misconduct against him. The JAG Investigating Officer (IO) recommended
that the JAG take administrative action against complainant to terminate
his employment, for failure to comply with the requirements of the Rules.
The IO also recommended that the JAG could consider deferring the adverse
action for two years, provided complainant continued to take actions to
comply with the Supreme Court of Arizona order, including entering into
a Management Assistance Program (MAP) at his own expense, and reporting
monthly to a probation officer during that period. The IO specified
that if complainant successfully complied with those requirements,
the JAG could vacate the administrative action and issue complainant a
Letter of Reprimand.
The FAD further found that on October 11, 2002, complainant responded
to the IO's recommendations, and pointed out the IO's finding that
Complainant's depression could explain his misconduct in Arizona.
Complainant requested that the Rules Counsel allow him to comply
with the MAP depression counseling, and report to a probation officer
monthly. Complainant asserted that this was a request for reasonable
accommodation.3 On March 12, 2003, the JAG informed complainant that,
based on his review of the IO's Report of Investigation and complainant's
response, he was reprimanding complainant and indefinitely suspending his
authorization to practice law in any capacity, including providing legal
advice of any type, in the Department of the Navy in any area of practice
under the JAG's cognizance. On April 1, 2003, as a result of the JAG's
decision of March 12, 2003, the Chief Claims Officer limited the scope
of complainant's duties, essentially eliminating any attorney duties.
On June 18, 2003, the Activity's Executive Officer (XO) proposed to
remove complainant from employment based on his loss of authorization
to practice law under the JAG's cognizance. Complainant responded
orally and in writing to the proposed removal. On September 30, 2003,
the Activity's new Commanding Officer (CO) recommended complainant's
removal from employment, and requested approval of that action from
the JAG and the General Counsel (GC). On May 3, 2004, the JAG approved
the CO's removal recommendation, in which the GC concurred. On May 14,
2004, however, complainant informed the CO that he would begin employment
with a different agency effective June 27, 2004, as a General Engineer,
GS-801-7.
The FAD then found that complainant did not show that he is an
individual with a disability pursuant to the Rehabilitation Act.
The FAD further found that assuming that complainant was an individual
with a disability, he was unable to perform the essential duties of his
position with or without reasonable accommodation; thus he was not a
"qualified individual with a disability" under the Rehabilitation Act.
The FAD found that therefore, complainant failed to establish a prima
facie case of disability discrimination. The FAD further found that
the agency did not respond to the reasonable accommodation request
because the JAG maintained that imposing measures short of immediate
indefinite suspension were inappropriate due to the nature of the
allegations against complainant. The JAG maintained that when he denied
complainant's request to hold any JAG-imposed discipline in abeyance
and indefinitely suspended complainant's authority to practice law, it
was self-evident that he had denied complainant's accommodation request.
The FAD concluded by finding no discrimination.
On appeal, complainant, through counsel, first notes that the Commission
found in EEOC Appeal No. 01A43005 that complainant made a request for
reasonable accommodation. Complainant additionally contends that every
management official admits that they failed to respond to complainant's
request for reasonable accommodation. Complainant contends that the
highest ranking agency official involved explicitly admits that he
made no effort to determine whether or not complainant was a qualified
individual with a disability and/or whether the agency could provide him
with reasonable accommodation. Complainant emphasizes that the agency
did not engage in an interactive good faith dialogue with complainant.
Complainant requests a reversal of the FAD.
In its Opposition brief, the agency contends that the issue on appeal
is not whether the agency responded to complainant's request for
reconsideration, as that has already been decided. The agency asserts
that the matter before the Commission is whether the agency properly
considered complainant's request for reasonable accommodation; and if not,
whether complainant was aggrieved by the failure to consider the request.
The agency contends that the request was considered by agency officials,
and that the decision to suspend complainant's authority to practice
law for the JAG Corps constituted a denial of complainant's reasonable
accommodation request that the Rules Committee defer any disciplinary
action and allow him to seek depression counseling. The agency further
contends that complainant has not shown that he is disabled within the
meaning of the Rehabilitation Act due to his depression and/or anxiety,
and he has not shown that he is "qualified" for his position because
of the suspension of his authority to practice law in the JAG Corps.
The agency also assumes arguendo that complainant was a qualified
individual with a disability, and argues that complainant's request
for accommodation was unreasonable. The agency states "[p]ermitting a
disbarred attorney to continue to practice law in [sic] not a reasonable
accommodation." Agency brief at 20. The agency also contends that an
agency is not required to excuse an employee's past misconduct even if
it is the result of a disability, and may discipline an employee if it
would have taken the same action absent disability. The agency requests
that we affirm its FAD.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In order to be entitled to protection from the Rehabilitation Act,
complainant must make the initial showing that he was a "qualified
individual with a disability." Assuming arguendo that complainant was
an individual with a disability within the meaning of the Rehabilitation
Act, we conclude that complainant has not proven, by a preponderance of
the evidence that he was a qualified individual with a disability during
the relevant time period. 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 who, with or without
reasonable accommodation, can perform the essential functions of the
position. 29 C.F.R. � 1630.2(m).
It is undisputed that on March 28, 2002, complainant was disbarred
by the Supreme Court of Arizona. On June 19, 2002, the Activity's
former Commanding Officer revoked complainant's previous settlement
authority, and limited his delegated authority to adjudicating claims,
including negotiating claims for settlement subject to the approval of
the Chief Claims Officer, which fell under the Federal Tort Claims Act
and the Military Claims Act. Shortly thereafter, on August 5, 2002,
the JAG Rules Counsel initiated an ethics investigation of complainant
pursuant to the JAG regulations and procedures concerning the rules of
professional conduct for attorneys who practice law under the cognizance
and supervision of the JAG ("Rules"). On March 12, 2003, the JAG
reprimanded complainant and indefinitely suspended his authorization to
practice law in any capacity, including providing legal advice of any
type, in the Department of the Navy in any area of practice under the
JAG's cognizance. On April 1, 2003, as a result of the JAG's decision
of March 12, 2003, the Chief Claims Officer further limited the scope
of complainant's duties, essentially eliminating any attorney duties.
The record evidence indicates that shortly after complainant requested
reasonable accommodation, he was no longer able to perform the essential
functions of his position for reasons stemming from his disbarment in
the state of Arizona. Therefore, we find that complainant was not a
qualified individual with a disability during the time period in question,
and therefore, we find that the agency did not violate the Rehabilitation
Act in failing to consider, respond to, or ultimately grant complainant's
October 11, 2002 request for reasonable accommodation. Accordingly,
we AFFIRM the FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 14, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Complainant initially raised additional allegations of discrimination
however, in Hovell v. Department of the Navy, EEOC Appeal No. 01A43005
(August 9, 2004), we affirmed the agency's dismissal of the additional
issues. However, in EEOC Appeal No. 01A43005, the Commission also
vacated the dismissal for untimely EEO counselor contact of the reasonable
accommodation issue and remanded it to the agency for further processing.
We denied the agency's subsequent request for reconsideration in EEOC
Request No. 0520041629 (November 18, 2004). As complainant correctly
asserts on appeal, this is the only issue currently before the Commission.
3 Complainant specifically stated, "I accept the IO's recommendation,
page 24 of reference (b), that Rules Counsel require my compliance with
the Arizona Bar Member Assistance Program for depression, my reporting
monthly to a probation officer appointed by Rules Counsel, and my
continued limitation of claims settlement authority, with JAG deferring
adverse personnel action for two years." ROI, at 95. Complainant
further states "The Navy should make reasonable accommodations for that
disability rather than take the most drastic adverse employment action."
Id., at 97.
??
??
??
??
2
0120060091
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036