Norbert W. Chausse v. National Security Agency 01A32552 06-25-03 . Norbert W. Chausse, Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency Agency. Appeal No. 01A32552 Agency No. 01-034 DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Commission affirms the agency's final decision. ISSUE Whether the agency discriminated against complainant on the bases of disability (back (upper and lower), legs, lungs), and age (date of birth June 10, 1938), when, from 1999 and continuing through the date of his formal complaint (September 26, 2001) 1) the agency denied complainant continuous and sole use of an agency supplied electric cart, and 2) managers advised complainant to retire in order to avoid the frustration of not having carts available at work. BACKGROUND As a result of several back injuries, complainant was unable to walk without a cane or walker and used an electric cart to transport himself in agency buildings. The agency had a fleet of 13 scooters or electric carts available for agency employees on a first come/first served basis, and only those who demonstrated a medical need were eligible to use a cart. The agency deployed the carts to guard stations for easy access by employees. The agency's acting senior medical officer attested that the carts were intended for use by those with temporary rather than chronic impairments. Complainant had used a cart on a daily basis since about 1996, and left it overnight locked in the credit union office, where it could be re-charged and available for his use the next day. Since about 1999, the agency had told complainant that he must buy his own cart, and the agency could not allow him continuous use of a cart to the exclusion of others. In 2001, complainant brought two personal carts into the office, and filed the instant complaint, asserting that the agency should purchase cart(s) for complainant and should provide for repairs to his personal carts. At the conclusion of the investigation, complainant was informed of his right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested that the agency issue a final decision. In its FAD, the agency concluded that the Rehabilitation Act did not entitle complainant to sole use of a government supplied cart and found no disability or age discrimination. Neither party submitted argument on appeal. ANALYSIS Reasonable Accommodation Under the Commission's regulations, an agency is required to make reasonable accommodations for the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship.<1> However, an agency is not required to provide a requested accommodation if it does not assist the disabled employee to perform the essential functions of his or her position. Sides v. United States Postal Service, EEOC Appeal No. 01954971 (Jul. 26, 2001). Here, complainant has not shown that the carts will help him to perform the essential duties of his position. Rather, the evidence shows that carts assist complainant both on and off the job with transportation. The agency is not required to provide a personal use item, here a cart to assist with mobility, as a reasonable accommodation under the Rehabilitation Act. Equal Employment Opportunity Commission (EEOC) Enforcement Guidance, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at 9 (rev. Oct. 17, 2002). However, the agency must nonetheless provide an effective accommodation to the complainant's disability. Such an accommodation would enable the complainant to enjoy the same benefits and privileges of the job as enjoyed by non-disabled individuals. In this case, the agency can provide that accommodation by allowing complainant to bring his own cart to work, and by ensuring that the work site is accessible, e.g., floor carpeting must enable a cart to traverse, door jams cannot be raised, doors to common areas must be automated, etc. The agency's insistence that complainant not retain a cart for his exclusive use does not amount to a failure to provide a reasonable accommodation. Disparate Treatment Absent direct evidence, in a disparate treatment claim such as this complainant may prevail if, after showing a prima facie case of discrimination, he shows that the agency's explanation of its reasons for the challenged action is a pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). Complainant may proceed under the shifting burden mechanism of proof, or he may present evidence which, if unrebutted, would support an inference that the agency's actions resulted from discrimination. See O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308, 312-13 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996). In order to establish a prima facie case of discrimination, complainant merely needs to show that he is a member of a protected class, that he was subjected to adverse treatment, and that he was treated differently than otherwise similarly situated employees outside of the protected class. Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). Again presuming without finding that complainant is an individual with a disability, here he failed to show that he was treated differently than similarly situated employees. The evidence showed that the carts were used by those who established a medical need, and no evidence showed that complainant was proscribed from using the carts. He was only told that he could not retain a cart indefinitely for his sole use. Here no evidence supports an inference that the agency's actions were based on discrimination. Complainant also asserted that others who used the carts were not required to turn them in at the end of the work day. However, complainant failed to show that the agency knew that others retained carts for their continual use, and failed to require the carts' return, as happened to complainant. The agency's custodian of the carts attested that, while inventory control of the carts was lax, she treated complainant as she would any individual who was found to be hiding a cart. Complainant's evidence failed to show otherwise. Age Harassment Finally, complainant's claim that he was discriminated against because of his age when managers and co-workers asked about his retirement presents a claim of harassment.<2> Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of law must be determined by looking at all the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Ford v. Department of Veterans Affairs, EEOC Appeal No. 01984630 (Jan. 2, 2002), citing Harris v. Forklift Systems, 510 U.S. 17 (1993). Here, the evidence does not show severe, threatening or humiliating conduct, nor even an offensive utterance. While complainant found inquiries about retirement objectionable, we do not find that such comments rose to the level of a hostile environment. CONCLUSION Therefore, after a careful review of the record, including complainant's contentions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, 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 _____06-25-03_____________ Date 1 An individual with a disability is defined as one who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). A qualified person with a disability is an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the position she 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). For purposes of this analysis, we assume, without finding, that complainant is an individual with a disability. 2 Complainant's former supervisor attested that he observed that complainant was irritated and frustrated with his physical difficulties and work-related difficulty regarding his cart, and he “wondered aloud” why complainant did not retire. Complainant's team leader acknowledged that he heard co-workers ask complainant about retirement out of what he believed was concern for complainant's health.