0120101596
04-27-2012
Xavier C. Johnson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Xavier C. Johnson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120101596
Hearing No. 410-2008-00154X
Agency No. P-2007-0464
DECISION
On September 26, 2009, Complainant filed an appeal from the Agency's September 8, 2009, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. 1 For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer at the Agency's penitentiary in Atlanta, Georgia. On July 18, 2007, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his disability (vision impairment) and in reprisal when from June 13 - 22, 2007, management denied his shift change request and charged him with being absent without leave (AWOL). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on September 25, 2008 and issued a decision on July 25, 2009.
The AJ found that no discrimination occurred under either of the alleged bases with regard to the denial of the shift change. AJ's Decision at 14. The AJ noted that pursuant to the collective bargaining agreement, each Correctional Officer is supposed to rotate his assigned post once every quarter and rotate his shift assignment once a year. Id. at 1. The AJ stated that the shift rotation lasts for one quarter and then the employee is permitted to return to his preferred shift when the quarter is over. Id. Complainant worked the day shift of 8:00 a.m. - 4:00 p.m. for four years by working a "sick and annual relief" schedule, where he filled in for officers on extended sick and annual leave. Report of Investigation at 15. The record indicates that Complainant had sought to remain on the day shift during this period so that he could be at home for his daughter until she completed high school. Id. at 8.
Complainant was diagnosed with keratoconus, a cracked cornea, which caused his vision to be blurred. AJ's Decision at 3. Complainant underwent a corneal transplantation on February 22, 2007 for this condition. Id. at 4. A letter from Complainant's physician dated January 25, 2007 stated that Complainant would be able to return to work after two weeks, provided he is comfortable from a visual standpoint, but should not lift heavy objects for six to eight weeks afterwards. Id. at 5. A subsequent note dated February 6, 2007 reiterated this information and further stated that Complainant could return to work with the following restrictions: that he be permitted to work from 6:00 a.m. to 2:00 p.m. daily, driving at two intervals only, to and from work. Id. Further, that Complainant be assigned monitoring of inmates' phone calls and that he not engage in heavy lifting or strenuous activity. Id. at 5-6.
A medical note dated March 7, 2007, stated that Complainant should not lift heavy objects, should not perform strenuous activities and not have physical contact with inmates at a level where an inmate could hit him in the eye. Id. at 6. The note indicated that these instructions should be adhered to for a period of six to eight weeks after surgery. Id. Complainant was provided with a phone monitor position and after he experienced difficulties looking at a computer screen, he was assigned to work as a receptionist. Id. at 4. The work hours for the receptionist position were 7:30 a.m. - 4:00 p.m. Id. Complainant requested that he be allowed to work from 6:00 a.m. - 2:00 p.m. because there would be less traffic during his commute. Id.
The AJ observed that although Complainant was initially supposed to be shifted from the day shift pursuant to the normal rotation in the spring of 2007, he was permitted by the Warden to remain on the day shift and work from 6:00 a.m. - 2:00 p.m. . Id. at 6. In June 2007, the Roster Committee assigned Complainant to work the day shift from 8:00 a.m. - 4:00 p.m., answering phones at the front desk. Report of Investigation at 3. The Roster Committee also assigned Complainant in June 2007 to work the evening shift, 4:00 p.m. to 12:00 a.m., monitoring inmate telephone calls, for the next quarter beginning July 1, 2007. Id. Complainant objected and the new Warden subsequently rejected Complainant's request to stay on the 6:00 a.m. - 2:00 p.m. shift. Id. at 4. Complainant claimed that he could not work the 4:00 p.m. to 12:00 a.m. shift because driving home at night after working eight hours was too much of a strain on his eyes. Id. at 7. Complainant stated that his vision declined greatly after working eight hours and he had problems judging distances, especially at night. Id. The Warden stated that Complainant did not submit sufficient medical documentation to establish that he needed to continue working a 6:00 a.m. - 2:00 p.m. shift. Id. at 17-18.
The AJ found that there was no medical documentation supporting Complainant's position as to the exact hours he needed to work. AJ's Decision at 7. The AJ noted that the physician's note was not couched in terms of medical necessity and gave no rationale for the restrictions. Id. Further, the AJ stated that the driving restriction was not mentioned in the post-operative letter. Id. According to the AJ, Complainant's superiors found his medical documentation to be insufficient, and Complainant's physicians refused to provide additional documentation. Id. The AJ noted that all that Complainant had in terms of medical documentation supporting his description of his condition was the pre-operation letter that stated he should be allowed to work from 6:00 a.m. to 2:00 p.m. daily, without specifically stating why. Id. at 8.
The AJ found that Complainant did not establish that the Agency failed to accommodate his disability. Id. at 11. According to the AJ, the Agency accommodated Complainant through the end of May 2007, with Complainant's preferred shift, but subsequently determined that Complainant's medical documentation was insufficient. Id. The AJ observed that management had to obtain someone else to work from 2:00 p.m. to 4:00 p.m. as a receptionist when Complainant left work at 2:00 p.m. Id. at 10. The AJ reasoned that Complainant had in effect requested that a portion of the essential duties of the position be waived so that he could work as a receptionist. Id. According to the AJ, during the relevant time period of June 2007, the Agency was reasonable in its belief that Complainant had failed to submit sufficient medical documentation to support the shift change he sought. Id. The AJ noted that Complainant's most recent medical documentation from March 2007 did not contain a driving restriction. Id. Further, the AJ stated that the medical documentation from February and March indicated that Complainant's restrictions were subject to change as he recuperated. Id.
The AJ found that Complainant was not subjected to disparate treatment with respect to his request for accommodation. Id. at 13. The AJ noted that Complainant cited one comparison who Complainant claimed never had to come off the 6:00 a.m. to 2:00 p.m. shift while serving a light duty assignment as a phone monitor. Id. The AJ observed that testimonial evidence indicated that the comparison had to rotate his shift even though he did work the 6:00 a.m. to 2:00 p.m. shift most of the time. Id. Further, the AJ observed that Complainant could not keep working as a phone monitor and that no showing was made that any employee besides Complainant was allowed to work the 6:00 a.m. to 2:00 p.m. shift as a receptionist. Id.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.2 On appeal, Complainant contends that those serving temporary alternative duty assignments were listed as part of the sick and annual relief shift and that the sick and annual relief shift did not count as part of the rotation. Complainant argues that he should not have been placed on the 4:00 p.m. - 12:00 a.m. shift until he was reassigned from his temporary alternative duty assignment. Complainant claims that his change from working 6:00 a.m. - 2:00 p.m. to 8:00 a.m. - 4:00 p.m. was retaliatory, given that the change occurred before the scheduled rotation in July. Complainant maintains that he provided sufficient information in support of his need for an accommodation.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Initially, we observe that the AWOL claim was not raised at the hearing and evidence was not presented. Complainant has not raised this claim on appeal, and therefore it will not be addressed.
Assuming arguendo that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we concur with the AJ that Complainant did not prove he was denied reasonable accommodation. The record reflects that the Agency provided Complainant with a position monitoring the phone calls of inmates. Complainant subsequently experienced problems gazing at a computer screen while serving in this position. Complainant next received work as a receptionist as an accommodation for his disability. The hours for the receptionist position were from 7:30 a.m. to 4:00 p.m. Complainant instead sought work hours of 6:00 a.m. to 2:00 p.m. The medical documentation submitted by Complainant was not sufficient to justify Complainant's alleged need for these work hours. The medical documentation from February and March 2007 stated that Complainant's restrictions were subject to change as he recuperated. The most recent medical documentation submitted prior to the relevant period did not include a driving restriction. Complainant had a letter from his physician requesting that Complainant be allowed to work from 6:00 a.m. to 2:00 p.m., but that letter did not offer a reason why, and it was submitted prior to the surgery. We find that Complainant did not provide adequate evidence to support a nexus between his impairment and the requested accommodation.
As for Complainant's claim that he was retaliated against based on the denial of his shift change request, the comparison cited by Complainant performed the inmate phone monitoring work from 6:00 a.m. to 2:00 p.m. The record indicates that despite Complainant's claim to the contrary, this comparison went through a shift rotation before returning to his regular shift. There is also no indication that any receptionist was allowed to work the 6:00 a.m. to 2:00 p.m. hours sought by Complainant. We conclude that Complainant failed to proffer sufficient evidence to support an inference of retaliation.
CONCLUSION
We find that substantial evidence in the record supports the AJ's finding that Complainant was not discriminated against on the bases of disability or reprisal when he was denied a shift change. The Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 27, 2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
2 The Agency noted that at the hearing, Complainant did not develop evidence concerning the AWOL claim and that the AJ did not address it.
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0120101596
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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