Wilson J. Roberts, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120100738 Hearing No. 410-2009-00052X Agency Nos. 06-44466-01128, 09-44466-17399, 09-44466-02376 DECISION On November 23, 2009, Complainant filed an appeal from the Agency’s October 29, 2009 final decision 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 Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant established that the Agency discriminated against him on the bases of disability and reprisal when, beginning on November 18, 2005, it denied him a reasonable accommodation of reassignment from an industrial environment to an office environment. BACKGROUND Beginning in February 1998, Complainant worked under a modified position description as a Machinist, WG-3414-10, in the Machine Shop at the Agency’s TRIDENT Refit Facility in Kings Bay, Georgia. Due to an on-the-job back injury in 1990, Complainant had permanent medical restrictions regarding walking, standing, sitting, lifting, bending, stooping, and squatting. In June and July 1998, Complainant’s physician recommended that he work in an office-related position that would be less likely to aggravate his condition. From 1998 to 2005, the Agency did not reassign Complainant to an office-related position but instead continued to modify his Machinist position to accommodate his permanent medical restrictions. On November 18, 2005, Complainant submitted a written request to the Technical Director (TD)1 for reassignment from the Machine Shop to an office environment. The request stated, in pertinent part, the following: This assignment is located in an environment associated with wet slippery floors, air borne particles, falling objects, frequent moving objects, cold/hot conditions, long standing requirements, frequent emergencies and etc. I have sustained four work related injuries of no fault of my own, related directly to the environment in which I was assigned to work … All I am asking is to be accommodated in a professional position with equivalent grade and pay with the type appropriate environment needed to allow me to be productive verse [sic] being in a position that places me at a risk of further harm to my permanent medical condition. In response, TD met with Complainant to discuss his request and asked him to provide updated medical information to support his request for reassignment. Complainant did not provide the updated medical information and the Agency did not reassign Complainant. On February 24, 2006, Complainant injured his knee while walking down the stairs in the Machine Shop. In his Form CA-1, Complainant provided the following description of the cause of the injury: “Walking down stairs, felt pain in lower back, right leg buckled, I caught myself with handrail to prevent failing down stairway.” After the knee injury, Complainant provided new medical documentation restricting his use of stairs. Complainant alleged that the injury would not have occurred if he was in an office environment because he “could have taken an elevator instead of having to talk up and down stairs.” In or about May 2008, Complainant sustained an injury at home and was placed on light duty with updated medical restrictions. Complainant alleged that, between February and June 2009, management harassed him by requiring him to provide additional medical documentation pertaining to those medical restrictions. In May 2006, June 2009, and July 2009, Complainant filed EEO complaints2 alleging that the Agency discriminated against him on the bases of physical disability (lumbar spine herniated disc; radiculopathy in lower extremities) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. Beginning in November 18, 2005, it denied him a reasonable accommodation of reassignment from an industrial environment to an office environment; and 2. From February to June 2009, it required him to provide additional medical documentation pertaining to his medical restrictions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Initially, the Agency found that Complainant established a prima facie case of discrimination on the bases of disability and reprisal. Next, the Agency found that management did not deny Complainant a reasonable accommodation. Specifically, the Agency determined that Complainant failed to show that the modifications to his position description were ineffective, that he had to work outside his medical restrictions, or that, based on his medical documentation, he required an office environment. Further, the Agency found that management articulated a legitimate, nondiscriminatory reason for sending Complainant numerous requests for medical documentation from February to June 2009; namely, management was attempting to clarify what his updated medical restrictions were and how they related to his ability to perform specific tasks. Finally, the Agency found that Complainant failed to show that management’s actions were a pretext for disability or reprisal discrimination. CONTENTIONS ON APPEAL On appeal, Complainant argued that management’s continuing failure to grant his request for reassignment to an office environment constituted a denial of reasonable accommodation.4 Specifically, Complainant asserted that the hazards inherent in an industrial environment, such as slippery floors and oily surfaces, caused him to injure himself repeatedly over the years. In addition, Complainant asserted that his reassignment request was consistent with his medical documentation, citing his physician’s 1998 request that he be placed in an office environment. Moreover, Complainant asserted that management’s modifications of his position description failed to address the industrial environment issue and was ineffective because he had sustained multiple injuries over the years. Further, Complainant asserted that TD, the management official responsible for the denial of accommodation, refused to provide an affidavit for the EEO investigation. Finally, Complainant, citing three previous Commission decisions, asserted that TD had been found to have discriminated against other employees at the same facility. In response, the Agency asserted that Complainant’s appeal brief was untimely and requested that we affirm its final decision. Aside from reiterating the analysis in its final decision, the Agency also addressed Complainant’s arguments on appeal regarding TD. Specifically, the Agency asserted that the record reflects that the EEO Investigator sent TD’s affidavit to the wrong email address and that there is no indication the EEO Investigator attempted to contact TD in person or by phone. In addition, the Agency asserted that the cases cited by Complainant were unrelated and irrelevant to the instant case. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a 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). See EEO MD-110, at Ch. 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”). Timeliness of Complainant’s Appeal Brief 29 C.F.R. § 1614.403(d) provides, in pertinent part, that any statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The Commission granted Complainant an extension until January 22, 2010. On January 4, 2010, Complainant submitted his brief to the AJ and to the Agency. Complainant discovered his error when reviewing the Agency’s opposition brief and, on March 8, 2010, resubmitted his brief to the Office of Federal Operations. Upon review, we find that Complainant provided adequate justification for extending the briefing period pursuant to 29 C.F.R. § 1614.604(c). We note that Complainant timely submitted his brief to the AJ, the Agency timely received a copy of his brief, and the Agency was afforded the opportunity to respond, and did, to the arguments in Complainant’s brief. Accordingly, we will consider Complainant’s brief on appeal. Reasonable Accommodation – Reassignment to an Office Environment5 Under the Commission’s regulations, federal agencies are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p); see Appendix. For purposes of analysis only, we assume, arguendo, without so finding, that Complainant is an individual with a disability entitled to coverage under the Rehabilitation Act[L1]. Reasonable accommodation may include “reassignment to a vacant position.” 29 C.F.R. § 1630.2(o)(2)(ii). “Vacant” means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Types of Reasonable Accommodations Related to Job Performance (Oct. 17, 2002) (Guidance). Complainant submitted a written request to be “accommodated in a professional position with equivalent grade and pay with the type of appropriate environment needed to allow [him] to be productive …” ROI, at Ex. F11. Complainant clarified that “[t]he requested accommodation is for a position in an office environment …” Complainant’s Aff., at 9. When asked by the EEO Investigator if he was aware of any other positions that he could be reassigned to, Complainant averred, “No, not at this time. I contacted [named employee], Code 100, Administration Officer [and] she said positions change on a daily basis.” Complainant’s Aff., at 10. Complainant did not provide any additional information about the date or substance of his contact with the Administration Officer. Based on the record before us, we find that Complainant has not established that the Agency subjected him to discrimination when it denied him a reasonable accommodation of reassignment from an industrial environment to an office environment. Complainant has an evidentiary burden in reassignment cases to show that, more likely than not, there were vacancies during the relevant time period into which he could have been assigned. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002). Absent evidence of a particular vacant, funded position, evidence that a vacant, funded position existed may be inferred based on the documentary or testimonial evidence regarding, inter alia: (1) Complainant’s qualifications; (2) the size of the Agency’s workforce; and (3) indicia of postings and or selections during the pertinent time period within classes of jobs for which Complainant would have been qualified. See Barnard v. U.S. Postal Serv., EEOC Appeal No. 07A10002 (Aug. 2, 2002). Complainant withdrew his request for a hearing and did not otherwise develop this evidence, and the record before us does not establish that, more likely than not, there was a vacant, funded position, for which he was qualified and to which he could have been reassigned. Regarding Complainant’s arguments on appeal concerning TD, we emphasize that our analysis rests on Complainant’s failure to show that there was a vacant, funded position for which he was qualified and to which he could have been reassigned. To the extent that Complainant argued that TD failed to engage in the interactive process, we note that an agency’s failure to engage in the interactive process does not, by itself, demand a finding that an employee was denied a reasonable accommodation. See Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Liability depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation. Id. As explained above, there is no evidence that, had the Agency properly engaged in the interactive process, Complainant would have discovered a vacant, funded position for which he was qualified and to which he could have been reassigned. Accordingly, we find that Complainant has not shown, by a preponderance of the evidence, that the Agency subjected him to discrimination under the Rehabilitation Act when it denied him a reasonable accommodation of reassignment from an industrial environment to an office environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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 __3/22/12________________ Date 1 TD did not provide an affidavit for the EEO investigation. 2 Complainant’s complaints were consolidated. The Agency framed Complainant’s claims as follows: (a) in November 2005, management failed to accommodate him an office environment equivalent to his pay grade and pay level; (b) management failed to adhere to his physician’s recommendation before or after February 24, 2006, when he almost fell down the stairs; and (c) his disability was not adequately accommodated and he was required to provide additional medical documentation to substantiate his need for reasonable accommodation. 3 29 C.F.R. § 1614.403(d) provides, in pertinent part, that any statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The Commission granted Complainant an extension until January 22, 2010. On January 4, 2010, Complainant submitted his brief to the AJ and to the Agency. Complainant discovered his error when reviewing the Agency’s opposition brief and, on March 8, 2010, resubmitted his brief to the Office of Federal Operations. Upon review, we find that Complainant provided adequate justification for extending the briefing period pursuant to 29 C.F.R. § 1614.604(c). We note that Complainant timely submitted his brief to the AJ, the Agency timely received a copy of his brief, and the Agency was afforded the opportunity to respond, and did, to the arguments in Complainant’s brief. Accordingly, we will consider Complainant’s brief on appeal. 4 Regarding claim 2 (the Agency requiring Complainant to provide additional medical documentation from February to June 2009), we decline to address this matter because Complainant did not specifically raise it on appeal. Complainant’s appeal focused exclusively on the denial of reasonable accommodation. The Commission exercises its discretion to review only the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § IV.A. (Nov. 9, 1999). 5 On appeal, Complainant argued that he was retaliated against when the Agency continually failed to grant his request for reassignment to an office environment. However, we find it more appropriate to analyze this issue as part of Complainant’s denial of reasonable accommodation claim, i.e., whether the Agency failed to meet its ongoing obligation to provide a needed accommodation. An employer has an ongoing obligation to provide a reasonable accommodation and failure to provide such accommodation constitutes a violation each time the employee needs it. EEOC Compliance Manual Section 2, “Threshold Issues,” No. 915.003, at 2-IV.C.1.a. (May 12, 2000). [L1]Note to LG: Might be a good place for the footnote???? --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120100738 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 7 0120100738 8 0120100738