David C. Bouffard,
Complainant,

v. 

Michael Chertoff,
Secretary,
Department of Homeland Security
(U.S. Customs and Border Protection),
Agency.

Appeal No. 01200652571

Hearing No. 380-2006-00024X

Agency No. CBP#04-290C/04-4222

DECISION

On September 14, 2006, 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 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 order.

BACKGROUND

The record reflects that in September 1997, complainant was hired as a
full-time seasonal Immigration Inspector with the former Immigration
and Naturalization Service.  At the time of events giving rise to
this complaint, complainant worked as a Customs and Border Protection
Officer (CBP Officer) at the Area Port of Blaine in Blaine, Washington.
As a CBP Officer, complainant's duties included inspecting travelers;
examining selected applicants for various immigration privileges and
benefits; seizing suspect property; and detaining people engaging in
suspicious activity.  Special requirements of the position included
carrying a firearm, possessing a valid state driver's license, working
shifts on a rotating basis, performing substantial amounts of overtime,
and undergoing a security clearance investigation.

In April 2004, complainant submitted a note to his supervisor from his
physician recommending that complainant be scheduled to work regularly
from 3:00 pm to 11:00 pm without overtime due to medical illness (severe
gastroesophageal reflux, Barrett's Esophagus).  Complainant's supervisor
advised complainant that he needed to provide more medical information to
determine whether an accommodation was appropriate.  On April 30, 2004,
complainant submitted another note from his physician which provided
more information about complainant's condition.

On May 17, 2004, complainant approached the Chief CBP Officer regarding
his accommodation request.  The Chief informed him that similar requests
had been denied in the past and that it was unlikely his request would
be approved.  On May 21, 2004, the agency notified complainant that his
work schedule would be changed to that of an intermittent employee,
to be effective May 30, 2004.  In addition to the complainant, four
other intermittent employees assigned to the Port of Blaine were placed
on non-work status in May 2004 for approximately five months.  None of
these employees were listed as disabled in agency records at the time of
the notification.2  On May 24, 2004, complainant contacted the agency's
EEO office.  On June 4, 2004, the agency issued a memorandum specifically
explaining to complainant that the reason for modifying his schedule was
"driven primarily by CBP-wide budgeting concerns."

On September 15, 2004, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of disability when:

(1) On April 22, 2004, complainant's request to be assigned to a set
work schedule, and not work overtime as a reasonable accommodation,
was not granted; and

(2) Beginning in May 2004, he was subjected to harassment based on his
disability and in reprisal for prior protected EEO activity arising
under the Rehabilitation Act.

On October 1, 2004, complainant submitted a memorandum to his supervisors
indicating that he had filed a formal EEO complaint and requesting
that his work schedule be changed from intermittent to full time, that
he would be scheduled for a Monday-Friday, 3:00 pm to 11:00 pm shift,
and that he would not be assigned any overtime.  On October 27, 2004,
the Acting Area Port Director replied to complainant's memorandum,
requesting that complainant's physician provide the agency with updated
medical information.  Additionally the Acting Area Port Director asked
complainant's physician to review the CBP Officer position description and
provide a written response to several questions.  On or around October
30, 2004, the agency received a response from complainant's physician.
On or about October 31, 2004, complainant and the other four intermittent
employees' work schedules were changed from intermittent to full-time.  

In February 2005, complainant's attorney sent the agency a letter
contending that complainant's condition qualified as a disability.
The agency responded, indicating that complainant's previously
submitted medical documentation was not adequate for the agency to make a
determination with respect to his accommodation request.  In March 2005,
complainant submitted a personally written response contending that his
documentation was adequate.

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).  Complainant timely
requested a hearing.  On July 20, 2006, the AJ assigned to the case issued
a decision without a hearing.  The AJ determined that complainant failed
to establish a prima facie case of disability discrimination because he
did not show that he was substantially limited in a major life activity.
The AJ further found that complainant failed to establish a prima
facie case of harassment based on his disability.  The AJ found that,
with respect to his harassment claim, complainant established a prima
facie case of discrimination based on reprisal for his prior protected
EEO activity.  However, the AJ found that complainant failed to establish
that the agency's legitimate, nondiscriminatory reasons for its actions
were a pretext for discrimination.  

When the agency failed to issue a final order within forty days of receipt
of the AJ's decision, the AJ's decision finding that complainant failed
to prove that he was subjected to discrimination as alleged became the
agency's final action pursuant to 29 C.F.R. § 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, complainant argues that the AJ erred in issuing a decision
without a hearing.  Complainant argues that the agency failed to properly
"engage in communication with the complainant as to whether he has a
disability and if it is a qualified disability."  He argues that the
agency failed to follow its own regulations in determining whether he
was substantially limited in a major life activity, which suggests a
discriminatory motive.  Complainant states that, in addition to his
previously identified disabilities, he also suffers from Obstructive
Sleep Apnea, which could have combined with his other conditions to rise
to the level of a disability under the Rehabilitation Act.  Complainant
contends that the EEO investigator failed to ask questions about his
disabilities and request enough medical evidence for the AJ to issue
a decision in this case.  Complainant argues that the AJ's decision
was based on "unverified statements and in some instances completely
false assumptions."  Complainant further argues that a hearing should be
ordered and that the agency should be ordered to "genuinely participate
in settlement talks."

In response, the agency requests that we affirm the AJ's finding of no
discrimination.  The agency argues that complainant is inappropriately
attempting to introduce new evidence into the record on appeal.3  The
agency also argues that complainant was not a "qualified individual with
a disability" and that complainant failed to establish a prima facie
case of harassment.  The agency further argues that even if complainant
established a prima facie case of discrimination, he failed to establish
that the agency's legitimate, nondiscriminatory reasons for its actions
were a pretext for unlawful discrimination.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, § VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be
reviewed de novo").  This essentially means that we should look at this
case with fresh eyes.  In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated.  See id. at Chapter 9,
§ VI.A. (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").

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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
Id.  According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250.  In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing.  Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).

Disparate Treatment Based on Disability

In order to establish that complainant was denied a reasonable
accommodation, complainant must show that: (1) he is an individual with
a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified
individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and (3)
the agency failed to provide a reasonable accommodation.  See Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (October 17, 2002).4  Here,
we assume without finding that complainant was an individual with
a disability within the meaning of the Rehabilitation Act.  Next,
complainant must establish that he was a "qualified individual with a
disability," which is defined as an individual with a disability 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).  
Based on a review of the record, we find that complainant failed
to establish that he was a qualified individual with a disability.
The agency argued below and on appeal that the ability to work rotational
shifts and overtime was an essential function of complainant's position.
The record contains the CBP Officer (Limited Duty) job description,
which indicates that seasonal employees, such as the complainant, were
required to work varying hours.  The position description states that
"[t]he incumbent of this position serves as a seasonal or part-time worker
at ports-of-entry during peak work periods."  The position description
also contains a "special requirements" section indicating that incumbents
of the position "[m]ust work on a shift and rotational basis and perform
substantial amounts of overtime."  Moreover, the record contains an
affidavit from the Area Port Director specifically noting that working
rotational shifts and overtime was an essential function of complainant's
CBP Officer (Limited Duty) position.  We find that the agency satisfied
its burden in establishing that the ability to work rotational shifts
and overtime was an essential function of the CBP Officer (Limited Duty)
position.  The accommodation complainant requested, namely not to have
to work rotational shifts or overtime is an essence a request to change
the essential function of his job.  The agency is not required to change
the essential functions of a job as a form of reasonable accommodation.
That said, the reasonable accommodation of reassignment to a vacant
funded position is an accommodation of last resort.  Complainant has
the evidentiary burden to establish that it is more likely than not that
there were vacancies during the relevant time period to which he could
have been reassigned.  See Barnard v. United States Postal Service,
EEOC Appeal No. 07A10002 (August 2, 2002).  We find that complainant
has failed to make this showing.

Hostile Work Environment

Complainant alleged that he was subjected to harassment when he was
informed in May 2004, that he would be placed in a non-work status
and assigned to work on an intermittent basis; he was sent a letter
in June 2004, which stated that he was not qualified to do his job;
he was required to turn in his gun, badge, and credentials in front of
his co-workers; he was called to work on short notice; in June 2004, he
was advised to keep his firearm locked up at work and not carry it home
each day; once he returned to work, he was only called intermittently;
in August 2004, he noticed the words "LTD DTY" next to his name on the
employee roster; on August 25, 2004, he was required to work overtime
and double shifts; and his work assignments have been limited to the
"KIOSK" and "NEXUS" jobs.

Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment."  Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).  To establish a prima facie case of harassment, complainant must
show that: (1) he is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) he was subjected to unwelcome
verbal or physical conduct related to his membership in that class
and/or his prior EEO activity; (3) the harassment complained of was
based on his membership in that class and/or his prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer.  See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)).  Further, the harasser's conduct
is to be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances.  Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

Upon review of the record, we find that complainant failed to provide
sufficient evidence in the record to show that the cumulative incidents
he cites are sufficiently severe or pervasive to create a hostile work
environment.  We also find no persuasive evidence in the record to
show that a reasonable fact finder would find that any of the alleged
harassment was motivated by unlawful animus towards complainant's
protected classes. We note that the majority of complainant's claims are
related to his work duties and the manner in which the agency handled
his work schedule.  The record reflects that seasonal employees could
be placed on full time, part time, or intermittent status and that
intermittent employees could be called upon to work on short notice.
We also note that the agency did not treat complainant any differently
than four non-disabled seasonal employees when it placed all five
individuals on intermittent status.  Therefore, we find that complainant
failed to establish a prima facie case of harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus towards him.  We discern no basis
to disturb the AJ's decision.  Accordingly, the agency's final order is
AFFIRMED.

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


January 16, 2008
Date

 
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.

2 On June 17, 2004, complainant filed an appeal with the Merit Systems
Protection Board, contesting the agency's decision to place him on
intermittent status.  On July 15, 2004, the MSPB dismissed the complaint
for lack of jurisdiction.
3 As a general rule, the Commission will not consider new evidence on
appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to the investigation or during the hearing
process.  EEO Management Directive 110, Chapter 9 § VI.A.3 (1999).
4 An "individual with a disability" is one who: (1) has a physical
or mental impairment that substantially limits one or more major life
activities; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. 29 C.F.R. § 1630.2(g).  Major life activities
include, but are not limited to, caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working. 29 C.F.R. § 1630.2(i).

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0120065257






U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036





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