0120103442
10-04-2012
David Mixon, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
David Mixon,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120103442
Agency No. HS-07-TSA-000798
DECISION
On August 18, 2010, Complainant filed an appeal from the Agency's July 21, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Transportation Security Officer at the Agency's Memphis International Airport facility in Memphis, Tennessee. On December 19, 2004, Complainant suffered an on-the-job injury which resulted in an inguinal hernia that required surgery. Following the surgery, Complainant's physician restricted him to lifting no more than 29 pounds, four times per hour, and the Agency provided him with a temporary limited duty assignment with a reduced schedule. Complainant subsequently requested assignment to a permanent, full-time, limited duty position, and on December 14, 2006, the Agency informed Complainant that his medical restrictions could no longer be accommodated as the Agency does not have any permanent limited duty positions. Thereafter, on March 19, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of his disability (hernia) when: (1) on October 4, 2006, management denied his request for the reasonable accommodation of a full-time light duty assignment; and (2) on unspecified dates, management gave him 15-minute breaks, while other employees were given 30-minute breaks.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, 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. On appeal, Complainant reiterates his contention that the Agency should have provided him with the reasonable accommodation of a reassignment to a position commensurate with his medical restrictions.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
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 accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, 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.
Here, we find that assuming Complainant is an individual with a disability, he is not qualified because he could not perform the essential functions of his Lead Transportation Security Officer (LTSO) position with or without a reasonable accommodation. Specifically, the record shows that all LTSO employees at Complainant's facility are required to lift objects weighing 40 pounds and transport them a minimum of 8 feet, place the objects on a tabletop of a minimum of 36 inches in height, a minimum of 12 times in 30 minutes. Additionally, LTSOs are required to be able to assist another individual in lifting objects weighing up to 75 pounds. Complainant acknowledges that he is unable to meet these requirements, even with a reasonable accommodation.
Further, although Complainant contends that the Agency should have provided him with a permanent limited duty position, we find that Complainant did not identify a vacant, funded position for which he could have performed the essential functions, with or without reasonable accommodation, and there is no evidence of one in the record. In reassignment cases, a complainant has an evidentiary burden to establish that it is more likely than not that there were vacancies during the relevant time period into which he could have been reassigned. See Hampton v. U.S. Postal Service, EEOC Appeal No. 01986308 (Aug. I, 2002). In his affidavit testimony, Complainant states that there "are a number of jobs that require no lifting" and that he could have been placed "in a clerical type position where there is no lifting over 30 pounds." We find, however, that the record shows that Complainant was provided with limited duty on a temporary basis, and there is no evidence that any permanent positions that did not require lifting existed, or that there were any vacancies during the relevant time period. In so finding, we note that an agency is not required to create a position as a reasonable accommodation, nor is it required to transform its temporary light duty positions into permanent positions as an accommodation. See Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997); see also Woodard v. United States Postal Service, EEOC Appeal No. 01A21682 (July 29, 2003).
Finally, with respect to claim (2), the record shows that the Agency has articulated a legitimate, non-discriminatory reason for providing Complainant with a 15-minute break while other employees were given breaks of 30-minutes. Specifically, the record reflects that Complainant was assigned to four-hour shifts and that regulations state that employees working a four-hour shift are only entitled to a 15-minute rest break. Further, the record shows that employees working eight-hour shifts are entitled to two 15-minute breaks and a 30-minute meal break. We note that the employees identified by Complainant as receiving 30-minute breaks were working eight-hour shifts. As such, we find that Complainant proffered no evidence to show that these articulated reasons were a pretext for unlawful disability discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, 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
October 4, 2012
__________________
Date
2
0120103442
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120103442