0120083697
03-20-2012
Francisco Rodriguez, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Francisco Rodriguez,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120083697
Hearing No. 510-2008-00096X
Agency No. 07-053
DECISION
On August 26, 2008, Complainant filed an appeal from the Agency's August 19, 2008 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Operations Manager at a Base Exchange in Fort Buchanan, Puerto Rico. On May 8, 2003, Complainant had a work-related injury, which he stated occurred lifting a television. Complainant used paid leave for his medical absence until November 20, 2004, when he began using leave without pay (LWOP). In a letter dated December 13, 2005, the Agency separated Complainant from employment effective November 20, 2004. In a formal EEO complaint dated April 13, 2007, Complainant alleged that the Agency discriminated against him on the basis of disability (right shoulder injury) and age (over 40) when it (1) terminated his employment and (2) in May 2006, offered him a lesser position as a Store Associate (I.D. Checker).1
The Agency accepted Complainant's claims for investigation. During the Agency investigation, the former General Manager for the Exchange (S1) stated, when Complainant was separated from employment, "Per his doctor's notes, he did not meet the physical requirements [of the Manager position]." S1 stated that Complainant was placed on total rest by his doctor (P1) and separated after one year on leave without pay. Complainant acknowledged that P1 did not return him to work, but stated that an independent medical expert (P2) determined that he was able to return to his Manager position with permanent restrictions. Complainant stated that management never contacted him about returning to work until five months after his employment was terminated.
The record shows that, between May 2003 and July 2006, Complainant's physician, P1, indicated that Complainant could not return to work. Also, the record shows that, in April and September 2004, Complainant sent letters to Agency management indicating that his condition had little or no improvement. In an Independent Medical Re-evaluation dated October 29, 2004, P2 stated that Complainant could return to the Operations Manager position only with permanent medical restrictions, as stated below:
� He cannot lift, more than five (5) pounds with his dominant right upper
extremity [;]
� He cannot push and pull objects weighing more than five (5) pounds[;]
� He cannot perform fine manipulation[;]
� He cannot reach or work above Right Shoulder level, more than one
(1) hour in an eight (8) hours day[;]
� He cannot operate a car, truck, train, tractor or other type of motor
vehicle at work[;]
� He should begin working four (4) hours per day, progressing to eight (8) hours in three months[;]
� He cannot keep his Neck in a fixed flexed or extended position for periods that exceed five (5) minutes every two hours[;]
� He should have a five (5) minute rest period every hour[;]
� He can sit, walk and stand[;]
� He may perform sedentary work on a trial four (4) hours per day, excerting[sic] up to five pounds of force occasionally and/or a neglible amount of force frequently or constantly to lift, carry, push, pull or otherwise move objects, including the human body.
In a Supplementary Report dated February 17, 2005, P2 stated that the Operations Manager task list reflects a sedentary position that does not require constant lifting, carrying, pushing or pulling more than five pounds.
On December 2005, the Agency terminated Complainant's employment effective November 20, 2004. On May 17, 2007, the Agency offered Complainant a position as Sales Associate (ID Checker) with the approval of P2.
At the conclusion of its 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). Complainant timely requested a hearing. The AJ assigned to the case determined that the complaint did not warrant a hearing and, on July 31, 2008, issued a summary judgment decision. The AJ found that claim (1) was procedurally insufficient under 29 C.F.R. �� 1614.107(a)(1) & (2) but that, even if it were sufficient, Complainant failed to establish that he was a qualified individual with a disability under the Rehabilitation Act. Further, the AJ dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, stating that the offer of an I.D. Checker position was not an adverse action.
In a final decision dated August 19, 2008, the Agency fully implemented the AJ's decision. The instant appeal followed from Complainant without comment.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
First, here, we find that it was appropriate for the AJ to issue a decision without a hearing on this record. We find no genuine issue of material fact exists. See 29 C.F.R. � 1614.109(g).
Second, we find that there is substantial evidence in the record to uphold the AJ's decision. We agree that Complainant failed to show that he was discriminated against as he alleged. A fair reading of Complainant's claims (1) and (2) is one of denial of reasonable accommodation. Complainant alleged that the Agency failed to allow him to remain in his Operations Manager position or return to it, and instead placed him in a lower position.
Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(0) and (p).
In order to be entitled to protection from the Rehabilitation Act, Complainant must make the initial showing that he is a "qualified individual with a disability." See 29 C.F.R. �1630.2(m). Assuming for the purpose of analysis that Complainant is an individual with a disability within the meaning of the Rehabilitation Act, we agree with the AJ that Complainant has not proven, by a preponderance of the evidence, that he was a qualified individual with a disability. A "qualified individual with a disability" is an individual with a disability who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual 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).
We find that there is substantial evidence in the record to support the AJ's conclusion that Complainant was unable to perform the essential functions of his Operations Manager position. When the Agency took action to terminate Complainant's employment in December 2005, Complainant had been absent from work due to a job-related injury since May 2003 and had been using leave without pay since November 2004. Further, the record shows that Complainant's physician, P1, recommended that Complainant not return to work at the time. We note that, on at least two occasions in 2004, Complainant informed the Agency that he could not return to work because his condition had not improved. Further, P2 stated that Complainant could return to work as an Operations Manager only in a very restricted capacity. Further, the record reveals that the Agency sought to place Complainant in another position which P2 approved.
Summarily, we are not persuaded that the Agency's termination of Complainant from the Operations Manager position and from the Agency overall was based on discriminatory motives.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision implementing the AJ's finding of no discrimination.
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
03/20/2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability."
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0120083697
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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