In this example, the complainant has more than one disabilities. Since he is already employed by the agency, we know it did not happen at pre-employment.
During the relevant time, complainant was employed as an Electronics Technician, GS-856-11, at the agency’s Naval Surface Warfare Center in Dahlgren, Virginia. On October 22, 2002, complainant filed the
instant formal complaint. Therein, complainant claimed that he was the victim of unlawful employment discrimination on the basis of disability (amputee/diabetes/heart and liver problems) when the agency proposed
his removal from agency employment due to its failure to reasonably accommodate his disability, and forced him to retire in lieu of termination.
Just on this basis, it sounds like the agency can find enough expert medical opinions to get their way, but they tried to avoid fighting the issues and instead go with the fact that the complainant filed later than statue of limitations allowed.
Here again the job description is a very important part of the case:
The record contains a copy of the position description for the Electronics
Technician position that was encumbered by complainant. The section
identified as “Major Duties and Responsibilities” does not identify the
manning of weather balloons or serving as AISSO as a duty of the position.
The subsection of the “Job Elements” section categorized as “Physical”
states that the “work is generally done in an office setting.”
Complainant also contends that the AJ improperly dismissed his request
to amend his complaint to include the reasonable accommodation claim.
Complainant contends that the requested amendment would not change the
identity of his formal complaint. Furthermore, complainant contends
that the AJ failed to address the request to amend his complaint to
include the reasonable accommodation claim.
this complainant has medical complications due to his type II diabetes
Ronald T. Jackson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200453001
Agency No. 03-00178-001
Hearing No. 120-2004-00135X
DECISION
Complainant filed an appeal from the agency’s final order 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 accepted pursuant to 29 C.F.R. § 1614.405(a).
During the relevant time, complainant was employed as an Electronics
Technician, GS-856-11, at the agency’s Naval Surface Warfare Center
in Dahlgren, Virginia. On October 22, 2002, complainant filed the
instant formal complaint. Therein, complainant claimed that he was the
victim of unlawful employment discrimination on the basis of disability
(amputee/diabetes/heart and liver problems) when the agency proposed
his removal from agency employment due to its failure to reasonably
accommodate his disability, and forced him to retire in lieu of
termination.
The record reflects that, due to complications from diabetes, complainant
lost his left leg below the knee in 1985; and his right leg below the
knee in 1999. Following these amputations, complainant employed two
prosthetic legs. In February and March 2002, complainant’s group leader
informed complainant’s first-level supervisor (S1) that complainant was
having difficulties launching weather balloons; 2 and that complainant
was observed falling down on two separate occasions forcing him to
crawl to get a grip on some object to pull himself up. Upon learning of
these two incidents, S1 requested medical information from complainant’s
physician, in order to determine whether it was safe for complainant
to continue to perform these duties.
On May 27, 2002, complainant’s physician sent a response to S1’s request.
Therein, complainant’s physician stated that he believed complainant
was able to continue to perform his duties. However, complainant’s
physician stated that it was not advisable for complainant to walk over
rough terrain or use stairs, and indicated that these restrictions were
permanent. Upon receipt of this information, S1 directed complainant
to refrain from any physical duties, and contacted an agency physician
for an evaluation of complainant’s fitness for duty. On August 15,
2002, the agency physician concluded that, based on a review of his
medical records, complainant would be at risk, due to his impairments,
if allowed to continue the task of launching weather balloons.
The record reflects that S1 met with the agency physician and Labor
and Employee Relations Specialist about possible accommodations for
complainant. The record reflects that the agency physician recommended
that complainant be provided with a stable and mobile platform on which
he could assemble his weather balloons; and that the weather balloons
be attached to, and released from, the mobile platform. The agency
physician recommended, however, that complainant should not directly
hold, support or release the weather balloons because such activities
may cause him to fall. The agency physician recommended further that
complainant not bend at the waist; not to climb more than two stairs;
that he should only climb stairs when railings are present; and not to
walk long distances or walk on uneven terrain.
In addition to the disputed weather balloon duties, it appears that S1 may
have also been concerned with complainant’s ability to continue serving
as the branch’s Automated Information System Security Officer (AISSO),
which required complainant to keep records of software and hardware.
According to S1, this duty required accessing many computer areas
among seven building, lifting hardware weighing between 25-30 pounds,
and walking up and down stairs. The record, however, indicated that
a contract computer specialist did much of the legwork for complainant
due to limited access to the buildings.
S1 determined that the possible accommodation proposed by the agency
physician would not be effective. S1 then met with Human Resources
and asserted that a base-wide search was conducted for an alternative
position for complainant, but the agency determined that there were no
available positions for which complainant was qualified.
On September 19, 2002, S1 issued complainant a letter proposing his
removal from agency employment based on his inability to perform the
duties of his position. On October 18, 2002, complainant voluntarily
retired from agency employment.
At the conclusion of the investigation, complainant received a copy of the
investigation report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a motion to dismiss or in the
alternative, an Agency Motion for Findings and Conclusions Without a
Hearing.
In its motion, the agency framed complainant’s claims as follows:
Complainant was discriminated against on the basis of disability when he
was forced to retire earlier than he planned, after the agency proposed
to remove him from Federal employment.
The agency further requested the AJ to issue a decision without a hearing,
in its favor. The agency argued that complainant failed to establish
a prima facie case of disability discrimination. The agency argued
that although complainant was an individual with a disability, he did
not establish that he was qualified to perform the essential functions
of his position with or without accommodation. Therefore, the agency
argued that it did not violate the Rehabilitation Act when it proposed
complainant’s removal for inability to perform an essential job function.
On February 20, 2004, complainant filed a response to the agency’s
motion. Therein, complainant argued that disputes about genuine issues
of material fact existed, making it inappropriate to decide the case by
summary judgment. Complainant further argued that because his last three
performance appraisals indicated he successfully fulfilled the duties of
his position, he was, in fact, a qualified individual with a disability.
Complainant asserted that this included successfully performing his
weather balloon launching duties for years. Complainant argued further
that the weather balloon duties was not an essential function of his
position, and therefore could have been reassigned to someone other than
himself.3
On February 19, 2004, complainant submitted a document identified as
“Complainant’s Motion to Amend Complaint.” Therein, complainant requested
that his complaint be amended to include a claim of failure to provide
reasonable accommodation. Specifically, complainant argued that in his
formal complaint, he had claimed he was the victim of unlawful employment
discrimination when “my employer proposed my removal from Federal Service
due to my employer’s inability to accommodate my disability and forcing
me to retire earlier than I had planned.” Complainant argued that he
received a notification from the agency stating that it accepted the
following claim for investigation that he was discriminated against
when he was “forced to retire earlier than planned; after the Agency
proposed to remove you from federal employment.” Complainant argued
that the requested amendment would not change the identity of his
formal complaint. Complainant argued further that the AJ should deny
the agency’s motion for a summary judgment because there were genuine
issues of material facts as to whether he is a qualified individual
with a disability; and whether the agency provided him with a reasonable
accommodation; and what the essential functions of his position were.
On February 26, 2004, the agency responded to complainant’s motion to
amend his complaint, requesting that the AJ deny complainant’s motion
based on the grounds that it was untimely and unreasonable. Specifically,
the agency argued that the motion to amend was dated February 19, 2004,
well beyond the 30-day time period to file a motion in accordance to the
AJ’s Acknowledgment Order dated December 1, 2003. The agency further
argued that complainant’s motion was prejudicial to the agency because
complainant has always denied he needed accommodation. The agency argued
that while complainant denied having a problem performing the essential
functions of his job, management nevertheless pursued accommodation
options so that complainant could perform his work in a safe manner.
On March 1, 2004, the agency issued a document identified as “Agency’s
Response to Complainant’s Opposition to the Agency’s Motion for Findings
and Conclusions Without a Hearing.” Therein, the agency argued that
complainant was not a qualified individual with a disability; and that it
had fulfilled its accommodation obligations under the Rehabilitation Act.
The agency argued that it presented clear evidence that all efforts to
find an accommodation to alleviate the significant risk of substantial
harm to complainant and allow him to continue to perform his duties in
a safe manner were ineffective.
On June 18, 2004, the AJ granted, without elaboration, the agency’s
Motion for Finding and Conclusions Without a Hearing; and denied
complainant’s Motion to Amend. In its August 13, 2004 final order,
the agency implemented the AJ’s finding of no discrimination.
On appeal, complainant contends that the AJ erred in issuing a finding
of no discrimination without a hearing. Specifically, complainant
reiterates that genuine issues of material fact exist concerning
whether the launching of water balloons and the AISSO duties were
essential functions of his position as an Electronic Technician.
Complainant further argues that the agency has acknowledged that serving
as the branch AISSO was collateral to his main duties and was not part
of his position description. Specifically, complainant states that the
duties of the AISSO position are “not a part of his position description
and since these duties were not Appellant’s responsibility until [S1]
assigned them to him, and since they were only performed 10 – 15% of
the time, they are not essential functions of the Appellant’s position.”
The record contains a copy of the position description for the Electronics
Technician position that was encumbered by complainant. The section
identified as “Major Duties and Responsibilities” does not identify the
manning of weather balloons or serving as AISSO as a duty of the position.
The subsection of the “Job Elements” section categorized as “Physical”
states that the “work is generally done in an office setting.”
Complainant also contends that the AJ improperly dismissed his request
to amend his complaint to include the reasonable accommodation claim.
Complainant contends that the requested amendment would not change the
identity of his formal complaint. Furthermore, complainant contends
that the AJ failed to address the request to amend his complaint to
include the reasonable accommodation claim.
As this is an appeal from an agency 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).
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. 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 (1086).
In ruling on a motion for summary judgment, a court does not sit as a
fact finder. Id. 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. A disputed 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,
322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103,
105 (1st Cir. 1988). A fact is “material” if it has the potential
to affect the outcome of a case. If a case can only be resolved by
weighing conflicting evidence, a hearing is required. In the context
of an administrative proceeding, an AJ may properly consider summary
judgment only upon a determination that the record as been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as
a “trial by affidavit.” Redmond v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, “there is a need for strident
cross-examination and summary judgment on such evidence is improper.”
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995). “Truncation of this process, while material facts are still
in dispute and the credibility of witnesses is still ripe for challenge,
improperly deprives complainant of a full and fair investigation
of her claims.” Mi S. Bang v. United States Postal Service, EEOC
Appeal No. 01961575 (March 26, 1998); see also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). The hearing process is intended to be an extension of
the investigative process, designed to “ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses.” See EEOC Management Directive
(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. §
1614.109(d) and (e).
The Commission determines that, in the instant case, there are
still genuine issues of material fact that need to be determined at
a hearing. As an initial matter, we not that complainant attempted to
pursue his reasonable accommodation claim, which was rejected, without
elaboration, by the AJ in her decision dated June 18, 2004. We find
that complainant’s claim alleging that he was discriminated against
when the agency proposed his removal from the agency and forced him
to retire in lieu of termination is inextricably intertwined with his
reasonable accommodation claim. Under the Commission’s regulations,
an agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual
with a disability unless the agency can show that the accommodation
would cause an undue hardship. 29 C.F.R. § 1630.9. In this case,
complainant’s involuntary separation from agency employment on the
basis of disability would require, ipso facto, consideration of whether
or not a reasonable accommodation was pursued prior to the separation.
Therefore, we find that the AJ improperly rejected complainant’s request
for inclusion of the reasonable accommodation claim, as consideration
of this matter would have been the proper course.
To successfully raise a disability discrimination claim, complainant must
also show that he is a “qualified” individual with a disability within
the meaning of 29 C.F.R. § 1630.2(m). In this context, qualified means
complainant, with or without accommodation, can perform the essential
functions of his position. This case presents a clear dispute between
the parties which must be resolved in order to determine whether or not
complainant is a qualified individual with a disability. Specifically, we
find that there is a dispute regarding whether the launching of weather
balloons and serving as the branch’s AISSO are essential functions
of complainant’s position. The agency argues that complainant’s
essential duties consist of launching weather balloons during test days,
recording the telemetered meteorological date from the balloon into a
computer database, and acting as the G63 and G61 AISSO. Complainant,
however, disputes this contention. Complainant argues that his position
description as an Electronic Technician, GS-856-11, makes no mention
of the weather balloon duties and AISSO collateral duties. This issue
must be determined in order to properly adjudicate this case. Moreover,
the Commission notes that even if the weather balloon duties are not a
part of, or even a major part of, complainant’s position description, the
record nevertheless reflects that complainant was performing these duties
as assigned, even if he fell while in the performance of these duties.
Complainant only ceased performing these duties when the agency directed
him to do so. We note further that complainant’s physician stated that
complainant could perform these duties.
In light of the disputed issue of material fact on the instant record,
issuance of a decision without a hearing was not warranted under 29
C.F.R. § 1614.109(g). Therefore, the Commission VACATES the agency’s
final order and REMANDS the matter for a hearing in accordance with this
decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Richmond Area Office
the request for a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency is directed to submit a copy
of the complainant file to the Hearings Unit of the Richmond Area Office
within fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit of the Richmond Area Office. Thereafter, the
Administrative Judge in the Richmond Area Office shall issue a decision
on the complainant in accordance with 29 C.F.R. § 1614.109 and the agency
shall issue a final order in accordance with 29 C.F.R. § 1614.110.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
December 15, 2006
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to the following recipients on the date
below:
Ronald T. Jackson
P.O.B.1052
Tappahannock, VA 22560
Mark Vinson
80 F St NW
Washington, DC 20001
William A. Navas Jr., Asst. Secretary, MRA/EEO
(NAVOECMA) OCHR Code 015
Department of the Navy
614 Sicard St., SE #100
Washington Navy Yard, DC 20374-5072
__________________
Date
______________________________
Equal Opportunity Assistant
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 During the investigation of the instant EEO complaint, S1 indicated
that the branch’s mission was to do gun testing and other testing that
generated loud noise. She said they used computer data from the balloon
launches to determine when the weather conditions were most suitable to
do the gun/loud noise testing. The record reflects that weather balloon
launching duties at issue consisted of the following responsibilities:
preparation and launch of hardware and software for the balloons; lifting
up to 25 pounds; bending; and walking back and forth over rough terrain
and railroad tracks to launch a balloon with telemetry.
3 In her affidavit taken during the investigation of the complaint,
S1 indicated that weather balloon launching occurred during some weeks
and not others depending on the test schedules. When it was scheduled,
she said it took up the bulk of the day. She conceded that she had, on
occasion, assigned another employee to help complainant by having that
employee actually launch the balloon, while complainant monitored the
telemetry from a computer monitor. She argued, however, that this made
the tests more costly by requiring two employees to do the work of one.
Complainant, on the other hand, asserted that two other similarly situated
employees – one in a wheel chair and another with a heart condition –
were accommodated during balloon launching.
??
??
??
??
2
01A45300
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120045300
10
0120045300
