Julio A. Helena v. Defense Logistics Agency 07A30108 09-30-04 . Julio A. Helena, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Appeal No. 07A30108 Agency No. JQ-02-038 Hearing No. 370-A3-2047X DECISION On April 22, 2003, the EEOC Administrative Judge (AJ) issued a decision finding that the agency had violated Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., by not engaging in the interactive process with complainant regarding a reasonable accommodation such that he could care for his disabled child. Following its June 2, 2003 final order not fully implementing the AJ's decision, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, the agency requests that the Commission affirm its rejection of the AJ's finding that the agency discriminated against complainant. The agency concluded that neither the Rehabilitation Act nor the Americans with Disabilities Act requires an employer to accommodate the disabled relative of an employee. For the following reasons, the Commission AFFIRMS the agency's final order. Complainant, a Materials Handler, WG-5, employed at the agency's Defense Distribution Center, San Joaquin, California (DDJC) facility, filed a formal EEO complaint with the agency on February 5, 2002, alleging that the agency had discriminated against him on the bases of race (Hispanic), sex (male), color (Brown), disability (lumbar strain and bilateral carpal tunnel syndrome), and age (D.O.B. 2/13/43) when: (1) on January 16, 2002, complainant was subjected to harassment by his supervisor when she informed him that she had carried him in an Absent without Leave (AWOL) status from December 17, 2001 to January 15, 2002; (2) on January 17, 2002, complainant was subjected to harassment by his supervisor when she notified him that his shift had been changed from Monday-Friday, 7:00 a.m. to 3:30 p.m. to Tuesday-Saturday, 9:30 a.m. to 6:00 p.m. (3) on January 18, 2002, complainant was subjected to harassment and disparate treatment when his supervisor notified him that his request to change his shift based on family hardship had been denied, and he was aware that hardship requests of others had been approved; (4) on or about August 27, 2001, complainant's supervisor directed him to have the agency physician conduct an annual physical, and thereafter, complainant became concerned about the physical when the physician performed a full back exam, spending 45 to 50 minutes with complainant, and questioned him regarding his medical history; and (5) during May and August, 2001, complainant was subjected to harassment when agency personnel contacted his doctor and the Department of Labor in an effort to bring complainant back to work on light duty. The record reflects that complainant was one of many workers who was assigned a Tuesday through Saturday shift in order to provide increased efficiency in providing military supplies to the troops in a timely manner. In January of 2002, complainant informed the agency that he had a child who is autistic and had a need for parental supervision. Complainant provided written documentation of this need for parental supervision. Complainant's supervisor denied the request for a change in work shift stating that complainant knew of the (possible change of) shift at the time he applied for the position, and should have made arrangements for the care of his son at that time. Concerning complainant's AWOL, the agency responded that because complainant did not return to work on December 17, 2001, as had been reflected in his medical documentation, it initially charged him as AWOL. Once further clarification was received, complainant's AWOL was nullified, as his Time and Attendance report was corrected to change the AWOL to workman's compensation. At the conclusion of the investigation, complainant was provided a copy of the investigative report and requested a hearing before an AJ. In an October 28, 2002 notice, indicating a possible decision without a hearing, the AJ found that complainant's claims 4 and 5, concerning the examination given him by the agency physician, and the alleged harassment by agency personnel who contacted complainant's doctor, should be dismissed as untimely filed. The AJ also found that all of complainant's claims based upon his race, color, sex, age and alleged disability are "legally insufficient." Particularly with respect to complainant's alleged disability, the AJ noted that "there is no evidence in the record that establishes that either the complainant's bilateral carpel tunnel syndrome or lumbar strain are substantially limiting impairments." The AJ further noted that there is no evidence that the agency regarded complainant as having a disability or that he had a record of such a disability. In the AJ's April 22, 2003 Decision Without a Hearing and Order, he specifically accounted that there is no evidence, "direct or circumstantial," that the agency's explanations for its actions in recording complainant's absence as an AWOL or moving him to another shift was because of his race, color, sex, age or alleged disability, or was pretext for such discrimination. He noted that the AWOL was corrected in complainant's records after further investigation, and complainant suffered no harm. However, the AJ found that the agency had discriminated against complainant because of his association with someone with a disability, in violation of the Rehabilitation Act, by refusing to grant complainant's request for a different work schedule. Specifically, the AJ found that complainant had established a prima facie case of association discrimination, in that the denial of complainant's requested accommodation was done by the agency with knowledge that complainant had a disabled son who required complainant's presence, and the denial of the accommodation as initially explained by the agency was explicitly on the basis of his son's disability: "You should have made arrangements for your son before you accepted the position. Therefore, your request for a shift change is denied." The AJ noted that the agency had asserted that complainant was also denied the requested accommodation because he did not have sufficient seniority to enable him to get the Monday through Friday shift that he desires. The AJ found that this explanation was sufficient to meet the agency's burden of articulating a reason for its actions. However, while complainant calls into doubt the bona fides of the agency's explanation on several accounts, the AJ reiterated that the undisputed material facts show that the agency has discriminated against the complainant, "even taking the [a]gency's explanations for its actions at face value." The AJ then found that complainant had established pretext. Mainly, complainant proved that his requested accommodation is reasonable as an exception to the agency's seniority system and established that the agency failed to engage in good faith in the reasonable accommodation process. As relief, the AJ ordered that complainant be paid $5,000.00 for pain and suffering, and if complainant returned to work, after having been out of work temporarily disabled for a period of time, complainant's seniority be credited to him as if he had remained on the job. Finally, the AJ ordered that when complainant returns to work, the agency engage in the interactive process with him regarding a reasonable accommodation for his child. The agency did not implement the AJ's decision, and asks that the Commission affirm its final order. In its appeal, the agency maintains that complainant was one of many workers who underwent a shift change in order to provide increased efficiency in providing military supplies to the troops in a timely manner. The agency further maintains that requests received in response to shift changes from employees without disabled relatives were denied, just as complainant's request was denied. The agency strongly argues that complainant's son is not entitled to a reasonable accommodation under the law. The agency further argues that a "reasonable accommodation is limited to qualified applicants and employees with disabilities." It cites various case precedents which conclude that the AJ's notions are misguided. The agency asserts that the AJ erred by not using a Disparate Treatment analysis when resolving the facts of this case. The agency maintains that under the appropriate analysis, complainant does not even establish a prima facie case. 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. After a careful review of the record, the Commission finds that summary judgment was appropriate, as no genuine dispute of material fact exists.<1> Concerning complainant's claim that he and his son were not reasonably accommodated, the Commission determines that this matter is more appropriately analyzed under a Disparate Treatment analysis. In Polifko v. Office of Personnel Management, EEOC Request No. 05940611 (January 4, 1995), the Commission observed that it is unlawful under the association provision to "exclude or deny equal jobs or benefits to, or otherwise discriminate against" an individual based on his or her association with an individual with a known disability. 29 C.F.R. § 1630.8. In the instant case, there is no dispute that the agency was aware of complainant's son's impairment. Here, complainant is not an individual with a disability, it is his son who has the disability. Nonetheless, the Rehabilitation Act extends jurisdiction to individuals who are not disabled, but who are associated with an individual who has a disability.<2> The association provision contained in the ADA states that it is a violation of the ADA for an employer to: exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association. See Polifko. A plaintiff attempting to establish a prima facie case of "association discrimination" under the Rehabilitation Act must establish: (1) that he was subjected to an adverse employment action; (2) that he was qualified for the job at that time; (3) that his employer knew at that time that he had a relationship with an individual with a disability; and (4) that the adverse employment action occurred under circumstances which raised a reasonable inference that the disability of the individual with whom he had a relationship was a determining factor in [the employer's] decision. Den Hartog v. Wasatch Academy, 129 F.3d at 1085 (10th Circuit 1997) (applying the ADA). While the record clearly establishes that complainant meets the first three prongs of a prima facie case of association discrimination, complainant has not shown that the adverse employment action occurred under circumstances which raised a reasonable inference that his son's disability was a determining factor in the employer's decision. Specifically, the agency provided evidence that requests received in response to shift changes from employees without disabled relatives were denied, just as complainant's request was denied. Also, the agency provided a comparator who allegedly has a disabled child, and whose temporary request concerning a delay in the implementation of the new shift was granted, in order to allow the employee to find child care. Further, the record reflects that complainant lacked seniority and thus was not on equal footing when competing for his desired duty shift. We further note that the Rehabilitation Act does not require the agency to provide complainant with reasonable accommodation so that he may care for his son because the obligation to provide reasonable accommodation only applies to qualified applicants or employees with disabilities. Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.8. Simms v. Department of the Navy, EEOC Appeal No. 01992195 (May 16, 2002). After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred. The agency has articulated legitimate, nondiscriminatory reasons for their various actions. Further, construing the evidence to be most favorable to complainant, we note that complainant failed to present evidence that any of the agency's actions were motivated by discriminatory animus. Accordingly, the AJ's finding of disability discrimination on the basis of association discrimination is REVERSED. 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: ______________________________ Frances M. Hart Executive Officer Executive Secretariat ___09-30-04_______________ Date 1Regarding the AJ's dismissals of various claims for untimeliness and failure to state a claim, we find that these dismissals were proper and we affirm. Moreover, complainant does not challenge these determinations in his appeal, but rather focuses on his denial of desired duty hours based on the agency's failure to reasonably accommodate him and his son. 2The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment.