Glenn T. Brown, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionDec 13, 2000
01970394 (E.E.O.C. Dec. 13, 2000)

01970394

12-13-2000

Glenn T. Brown, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Glenn T. Brown v. Department of Transportation

Appeal No. 01970394

December 13, 2000

.

Glenn T. Brown,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01970394

Agency No. DOT-94-0182

The complainant timely filed an appeal with the Equal Employment

Opportunity Commission (EEOC or Commission) from a final agency decision

dated September 12, 1996 concerning his complaint of unlawful employment

discrimination in violation of � 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq. The appeal is accepted under 29

C.F.R. � 1614.405.<1>

ISSUE PRESENTED

Whether the complainant was discriminated against on the basis of

disability (hearing loss) when over a period of months the agency failed

to accommodate his disability.

BACKGROUND

The complainant filed an equal employment opportunity (EEO) formal

complaint alleging the above issue. Following an investigation, he did

not request a hearing before an EEOC Administrative Judge. The agency

then issued a final decision finding no discrimination.

The complainant worked as an Air Traffic Control Specialist (ATCS),

GS-12 in the agency's Federal Aviation Administration (FAA), Air Traffic

Division (ATD). His duties included giving pilots meteorological and

aeronautical information needed to make decisions and calculations.

Specifically, while pilots were pre-flight and in-flight (air borne), this

included giving relevant weather, routes of flight, aids to navigation,

and terminal information. In-flight duties also included identifying

emergencies and providing rapid remedies such as orienting lost aircraft

and dispatching emergency equipment.

The complainant began working at the FAA in 1970, and since 1971 was

stationed at the Atlanta flight service station. When this station closed

in February 1993, he was reassigned to the Macon, Georgia automated flight

service station. In Atlanta, in-flight duties were located away from

other employees, and the complainant used a hand held microphone and

loud speaker. In Macon, employees with different in-flight positions

sat side by side, and the complainant used a headset. There was a loud

speaker, but it was not used because it created communications problems

for controllers. Macon was much busier. Atlanta handled about six

frequencies, whereas there were 30 to 40 at Macon.

While going through on-the-job certification in Macon, the complainant

complained that he had difficulty performing his duties because of a

hearing problem and tinnitus in his right ear.<2> He raised this with

an unidentified agency medical official in March 1993. The complainant

indicated a loud speaker was not useful because it was permanently

installed to his right (the speaker was not actually used). His hearing

was better on his left side. He asked to be excused from his position,

an apparent reference to in-flight duties. The medical official advised

that accommodation requests should be made to management.

On April 1, 1993, the complainant got a letter from his physician, an

otologist, stating he was disturbed by multiple loud sounds in some of

his work situations, and may be able to better concentrate at work if

he was exposed to less noise and competing voices. Then in early April

1993 the complainant made a request to Macon management for a waiver

from in-flight duties. He explained that he only had the ability to

discern one voice or sound at a time. He stated this started to become

apparent in Atlanta after 1989.

Based on the complainant's assertion that he was unable to perform his

duties, and confirmation by observers, the complainant's situation was

referred to an agency flight surgeon. In late April or May 1993, the

complainant was medically disqualified from ATCS duties by the flight

surgeon. The record reflects that the flight surgeon was flexible,

and would recertify the complainant if it was demonstrated in practice

that he could perform his duties. The complainant's last day at work

was May 17, 1993. He went out on sick leave.

The agency declined the complainant's request to eliminate in-flight

duties. It explained, in essence, that they were an essential function

of his job. Specifically, it informed the complainant that they were

grade controlling and eliminating them would create a different position.

Starting in June 1993, the FAA's Human Resource Management Division

started trying to find the complainant alternative employment. It asked

if he wished to be reassigned, and if so to provide certain information.

In response, the complainant stated that he would accept an assignment

only in the Atlanta and Macon areas, would consider jobs down to the

GS-7 level, and submitted an application for federal employment. An FAA

personnel staffing specialist stated that he reviewed the complainant's

application and determined in June 1993 that there were no positions in

the Southern Region for which the complainant was qualified outside ATD.

Accordingly, later in June 1993 the personnel staffing specialist sent

a memo to the Southern Region ATD asking if there were any positions

available for the complainant that would utilize his expertise in air

traffic. ATD responded there were no openings to offer the complainant.

Meanwhile, in response to a letter from the complainant, the FAA's

regional Selective Placement Coordinator for Employing Persons with

Disabilities (Disability Coordinator) contacted the complainant in July

1993. The Disability Coordinator indicated that he put the complainant

in touch with a hearing impaired employee he knew of in another region

who found an accommodation. But this did not provide an immediate

solution for the complainant. The Disability Coordinator then got in

touch with the Job Accommodation Network (JAN). JAN was established by

the President's Committee on Employment of People with Disabilities as an

information and consulting service providing individualized accommodation

solutions to enable people with disabilities to work. The complainant

talked with JAN at length.

In August 1993 the Acting Manager of the ATD formally informed the FAA

Manager of Human Resource Management Division that ATD was unable to

find a reasonable accommodation for the complainant. Specifically, he

wrote that after discussion ATD concluded that no amount of equipment

modification could accommodate what the complainant described as severe

tinnitus and the inability to discern more than one voice or sound

at a time. The Acting Manager also wrote that ATD looked for another

position which did not require medical clearance, but was unsuccessful.

Accordingly, on September 20, 1993, the agency convened a Counseling and

Review Board to review the agency's reasonable accommodation efforts.

The board was comprised of the Acting Manager of the Employment Branch,

the Regional Flight Surgeon, the Disability Coordinator, the referenced

FAA personnel staffing specialist, and an ATD operations specialist.

The complainant also attended. The Board concluded that ATD explored

all options for providing a reasonable accommodation and that the agency

made all reasonable placement efforts. Nevertheless, it solicited from

the complainant a more detailed application for federal employment so

the agency could continue job search efforts.

After reviewing the new application, the FAA personnel staffing sent

a memo to the Manager of the Logistics Division in early October 1993.

It stated that the complainant was qualified as a Supply Technician, GS-5,

enclosed his application, and asked if there were any positions in the

division for him in the Southern Region. The division manager replied

there were no vacant positions for which the complainant qualified.

Meanwhile, the Disability Coordinator continued his efforts to find the

complainant a reasonable accommodation. The Disability Coordinator

affirmed that on January 16, 1994, he received a telephone call from

JAN stating it found a company that manufactured a device that should

help the complainant. Later the same week the Disability Coordinator

arranged for a three-party call between the Coordinator, the complainant,

and the company. The complainant then visited the company, a device

was manufactured, and he was fitted. It was a molded ear piece.

Earlier, on January 6, 1994, the complainant told the flight surgeon

that he believed he could perform his in-flight duties if the speaker

was moved to his left side. Also, at some point the complainant told

the flight surgeon that he believed he could perform these duties with

a molded ear piece. The flight surgeon responded that the complainant

would need an over-the-shoulder evaluation to see if these things

would work. It then started, at least informally, in January 1994.

A quality assurance specialist who evaluated the complainant performing

in-flight duties in February 1994 found that he ably performed his

duties while alternatively using his molded ear piece and loud speaker.

But the specialist observed that the speaker was not effective because

it created problems for the other ATCSs. The complainant did well in

a series of other on-the-job evaluations in early March 1994.

Then on March 10, 1994, ATD sent a letter to the flight surgeon

recommending that the complainant be certified for ATCS duties. After a

physical examination, the flight surgeon cleared the complainant to

perform ATCS duties with the limitation that he discontinue regular

use of temazepam (a sedative-hypnotic primarily used for insomnia)

and carisprodol (a muscle relaxant).

The complainant does not contend he was able to return to work during

this time. The record reflects that while out on sick leave he took a

part-time job as a grocery clerk. He injured his back doing this job in

August 1993, and stopped working. He worked there about three weeks.

He had an operation for a herniated disc in October 1993, but his pain

continued even with physical therapy and medication.

Around April 1994, an ATD manager began speaking to the complainant

to clarify when he would return. Over the months the manager stayed

in contact with the complainant. The complainant repeatedly asked for

leave, citing for example a bleeding prostate and medication that made

him depressed and unable to drive. The leave was granted. At the ATD

manager's request, the complainant submitted a June 1994 letter from

the office of his neurosurgeon. It stated the complainant had signs of

depression and stated that he could not return to air traffic duties due

to stress. On July 11, 1994, the ATD manager contacted the complainant

again. The complainant said he was off medication, but still had periods

of depression and problems sleeping. The manager advised the complainant

to report to duty. Nevertheless, he continued on approved leave.

In fact, the complainant exhausted his sick leave around May 1994,

took some annual leave, and was then granted advanced sick leave.

In July 1994 the complainant's treating psychiatrist cleared him to

return to work with no restrictions. The psychiatrist indicated that the

complainant had anxiety and depression because of medications (apparently

for his back), but his condition had improved. After some delay by

the complainant, he returned to work on July 25, 1994. Upon returning,

he discussed his depression and anxiety with his manager. He told his

manager that to protect his health, he was retiring, and did so effective

July 30, 1994.

ANALYSIS AND FINDINGS

As a threshold matter, one bringing a claim of discrimination on the

basis of disability must show that he is an individual with a disability.

29 C.F.R. � 1630.2(g).<3> The complainant characterized his tinnitus

as severe, stating it sounded like a loud combination of crickets, a

waterfall, a ringing sound, and blowing wind. He stated it was difficult

for him to have a conversation in a loud, crowded room. In its final

decision, the agency found that the complainant was an individual with

a disability. Accordingly, the issue of coverage under the Rehabilitation

Act is not before the Commission, and need not be discussed further.

A qualified individual with a disability is one who has a disability

and satisfies the requisite skill, experience, education and other

job related requirements of the position in question and can, with or

without reasonable accommodation, perform the essential functions of such

position. 29 C.F.R. � 1630.2(m). The complainant contends that after

the agency became aware of his disability, it was required to provide him

the reasonable accommodation of modifying his job to eliminate in-flight

duties. But under the Rehabilitation Act and the ADA, an employer is not

required to eliminate an essential function of a position as a form of

reasonable accommodation. Id.; EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship Under the Americans with Disabilities

Act, preliminary discussion before question 16, (March 1, 1999).<4> The

record shows that in-flight duties were a core or essential function of

the complainant's ATCS job.<5>

In his EEO complaint, the complainant contended that he suggested

in-flight duties be moved to a separate room so he could use a loud

speaker, and alleged the ATD operations specialist responded at the

Counseling and Review Board meeting of September 20, 1993 that this was

too expensive. There are no other references to this in the record. It

is not mentioned in the counselor's report, the complainant's affidavit,

or his appeal, and notes by agency officials detailing contacts with the

complainant or their statements. The ATD operations specialist stated

that his only involvement with the complainant's situation was sitting

in on meetings.

Given the above, and other circumstances surrounding the loud speaker,

we find that it is more likely than not the complainant did not make

a request for a separate room as alleged above. The agency gave the

complainant an over-the-shoulder evaluation using a loud speaker soon

after he expressed a desire to use it in January 1994. This demonstrates

a good faith effort by the agency to explore such an accommodation when

he raised it. The evaluation indicated the complainant could hear well

with the speaker, but it disrupted other ATCSs. However, by this time

the loud speaker option could readily be discarded because the molded

ear piece was also shown to work. Prior to the evaluation, it was not

apparent that the loud speaker would work for the complainant given the

description of his hearing.

On appeal, the complainant takes issue with the fact that it took

the agency some nine months, until January 1994, to find a reasonable

accommodation. Under the Rehabilitation Act, it is anticipated that

the search for a reasonable accommodation is an interactive process

between the employer and the individual with a disability. When the

parties are unaware of possible effective accommodations, there are

outside sources to help find an answer. Id., question 5. Here,

the complainant initially asked for in-flight duties of his job to be

eliminated, something which the agency explored but legally denied,

and for reassignment. In compliance with the complainant's desire,

the agency gathered information on his qualifications and promptly

explored reassignment, but its repeated searches were unsuccessful.

These repeated searches met the agency's Rehabilitation Act obligations

to try to effectuate a reassignment.

As part of the unreasonable delay argument, the complainant avers that

it was the EEO counselor that actually found the other hearing impaired

employee. The complainant references the counselor's report. But both

the counselor and the Disability Coordinator may have worked separately

on this matter. The complainant also contends that the hearing impaired

employee was not uncovered until January 1994, and that JAN was not

contacted by the agency until December 1993. He references a cover letter

JAN sent to the Disability Coordinator in December 1993 which stated

information on environmental enclosures was enclosed. These contentions

were made for the first time on appeal, and the record does not provide

specific dates on this matter. Nevertheless, the record establishes that

the agency made appropriate efforts to find the complainant a reasonable

accommodation, and when one was found, took timely action to implement

it. As recounted in this decision, the agency never stopped trying

to find a solution which would accommodate the complainant. It looked

into restructuring his position, reassignment, held a Counseling Review

Board meeting, prompted ATD to explore equipment modification, put the

complainant in touch with another hearing impaired employee, contacted

and worked with JAN, and tested the effectiveness of suggested equipment.

Soon after the complainant obtained the molded hearing piece, the agency

began the certification process with him using it. After the complainant

was certified, he still did not return, citing problems unrelated to

his hearing. Nevertheless, as the agency did throughout the process,

it kept the complainant informed of its efforts while he was on sick

leave for various reasons, including advanced sick leave.

After the complainant returned, he resigned within five days. While the

complainant alleged in his EEO affidavit that he resigned because he was

confused and depressed and ran out of sick leave, he does not contend

that the agency forced him to resign.

The complainant has failed to show that the agency violated the

Rehabilitation Act.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it

is the decision of the Commission to AFFIRM the agency's finding of no

discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 13, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Tinnitus is the perception of sound in the absence of an acoustic

stimulus.

3The 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.

4This guidance is posted at www.eeoc.gov.

5On appeal, the complainant references language in the counselor's report

which reported that ATD did not want to set a precedent by accommodating

him. However, this referred to eliminating the essential function of

in-flight duties, something which it was not required to do.