01a53054
05-09-2006
John Prock, Complainant, v. Mike Johanns, Secretary, Department of Agriculture (Forest Service), Agency.
John Prock v. Department of Agriculture
01A53054
May 9, 2006
.
John Prock,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 01A53054
Agency No. USDA 013001
Hearing No. 370-2004-00401X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Forestry Aide at the agency's
Stanislaus National Forest, Mi-Wok Ranger District, filed a formal
EEO complaint on or about January 8, 2001, alleging that the agency
discriminated against him on the basis of disability when:
(1) Between March and April 2000, management officials subjected him
to a hostile work environment when they made remarks about his physical
condition;
In July 2000, the agency failed to reasonably accommodate him by not
placing him in a Fire Prevention Officer position, and
In October 2000, the agency terminated him.
The relevant and undisputed facts are the following: The United States
Forest Service (the agency) hired complainant in 1997 as a temporary
Firefighter, GS-0462-03. After his employment period lapsed, the agency
rehired him as a temporary Firefighter on the Hotshot Crew at Stanislaus
National Forest in 1998 and in 1999. In September 1999, complainant
suffered an on-the-job injury while working on the Hotshot Crew.
He fractured his vertebra and aggravated a preexisting spinal bifida
occulta condition which resulted in Spondylolisthesis. He filed for,
and received, workers compensation and was out of work from September
1999 through March 2000.
When complainant returned to work in April 2000, he was offered a
temporary, light duty position as a Forestry Aide, GS-03, within his
medical restrictions. At first, his duties included, among other things,
taking property inventory, posting signs, writing reports and citations,
outfitting lookout towers and rebuilding the tower steps. From June
through October 2000, his assignments included cleaning trails and
campsites, posting signs and cutting brush.
On October 18, 2000, complainant was terminated for cause. The reasons
stated in the termination letter were that complainant: (1) failed to
comply with a Letter of Instruction; (2) misused a government vehicle,
and (3) falsified time and attendance records.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Upon an agency motion, the AJ issued a decision without a
hearing, finding no discrimination.
The AJ concluded that complainant had failed to establish that his
condition substantially limited a major life activity, and as such,
had failed to set forth a prima facie case of disability discrimination.
The fact that the agency placed him a light duty position, according to
the AJ, is no indication that complainant is disabled within the meaning
of the Rehabilitation Act. Moreover, the AJ further found that the
alleged statements did not rise to the level of actionable harassment.
Finally, with regard to his claim that the agency failed to accommodate
him in a fire prevention position, the AJ determined that the agency
had in fact appropriately accommodated complainant following the injury.
The agency's final order implemented the AJ's decision.<0>
Complainant makes no new contentions on appeal. He states that there are
a �few problems� with the AJ's decision. He points out that although
the AJ stated that he did not work on the Hotshot crew in 2000, he was
on the work list in March-April 2000 when the alleged hostile remarks
were made. The agency submits no statement in opposition to the appeal.
It requests that we affirm its final order.
Legal Analysis
The Commission shall review the AJ's legal and factual conclusions, as
well as the agency's final order based on a de novo standard. See 29
C.F.R. � 1614.405(a) (2004); see also EEOC Management Directive 110,
Ch. 9, � VI.B (Nov. 9, 1999) (providing that an AJ's �decision to
issue a decision without a hearing ... will be reviewed de novo�).
This essentially means that we look at this case with fresh eyes, and
we are free to accept (if accurate) or reject (if erroneous) the AJ's
and agency's factual conclusions and legal determinations, including the
ultimate fact of whether discrimination occurred and a federal employment
discrimination statutes was violated. See id.
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. See 29 C.F.R. � 1614.109(g) (2004). 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. See 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. See id. at 249.
The pleadings, responses to discovery, affidavits, depositions, etc., must
show on their face that there are no genuine issues of material fact.
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. See id. at 255; see also Petty v. Dep't of
Defense, EEOC Appeal No. 01A24206 (July 11, 2003) (quoting Anderson,
477 U.S. at 249) (�The administrative judge may not issue a decision
without a hearing if he or she actually has to find facts first to do so.
According to the Supreme Court, �at the summary judgment stage the judge's
function is not... to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for trial.�).
Disability Discrimination
Absent direct evidence of discrimination, we analyze this claim as a
disparate treatment claim under the Rehabilitation Act. Thus, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Prog., 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination. See
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. See id.
Unlike the AJ, we shall assume arguendo that complainant is an
individual with a disability. Nevertheless, his claim is unsuccessful
because he has failed to disprove with proof of pretext the agency's
explanation for taking action against him. The agency explained that
it terminated complainant for cause due to his failure to comply with
a Letter of Instruction; his misuse of a government vehicle, and the
falsification of leave and attendance records during a particular
pay period. The testimony of complainant's supervisor and Team Leader
confirm these incidents. See Exs. 23, 24 and 29. Complainant's only
argument against the agency's action is that the reasons for terminating
him are false. He has put forth no evidence to support his position.
However, we have repeatedly determined that �mere conjecture that [the]
employer's explanation is a pretext for intentional discrimination is an
insufficient basis for denial of summary judgment.� Branson v. Price
River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988); see also George
v. United States Postal Serv., EEOC Appeal No. 01A31214, *2 (July 28,
2003).. Without concrete evidence that the agency's reason is a pretext
to discriminate against him, we cannot find for complainant. The agency
generally has broad discretion to set policies and carry out personnel
decisions, and we do not be second-guess the agency's decision-making
absent evidence of unlawful motivation. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Denial of Reasonable Accommodation
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. See 29 C.F.R. �
1630.2(o) and (p). The agency may accommodate an employee by modifying
or adjusting the work environment or the manner or circumstances under
which the position held is customarily performed so as to enable the
qualified individual with a disability to perform the essential functions
of the position. See 29 C.F.R. � 1630.2(o)(ii).
Complainant here asked his supervisors to be placed permanently in a fire
prevention position or as a fire truck engineer. He was unhappy with
the decision to place him in a Recreation/Off Highway Vehicle position.
Complainant argued that many of the duties he performed in his light
duty assignment were those of a fire prevention officer, and that even
if fire prevention officers must be able to assist in putting out fires,
he was capable of such tasks on a �lower scale.� Ex. 17.
We begin by noting that while the Rehabilitation Act entitles protected
individuals to reasonable accommodation absent undue hardship, it does
not entitle them to the accommodation of their choice. See Castaneda
v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994);
see also EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, Question 9
(rev. Oct. 17, 2002) (Reasonable Accommodation Guidance). Moreover,
assuming again arguendo that complainant is an individual with a
disability, we find that he fails to prove, by a preponderance of
the evidence, that he is 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. See 29 C.F.R. �
1630.2(m).
As a temporary GS-03 employee prior to the injury, the agency's only
duty, if any, to accommodate complainant was to a vacant position at
or below a GS-03 grade level. See Reasonable Accommodation Guidance.
The agency is under no duty to create a position. See id. We agree
with the AJ that the agency properly accommodated complainant, and, in
fact, went so far as to create a position for complainant and prolong
his temporary status following his accident. See Exs. 19 and 23.
Complainant wanted a position that exceeded his medical restrictions and
for which he was not qualified. The record shows that both the Fire
Prevention Officer (GS-08) and the Fire Prevention Technician (GS-06)
positions were permanent, higher grade positions than the temporary, GS-03
level where he was classified. See Ex. 21. Simply put, complainant's
low grade level simply made him ineligible and disqualified him for the
accommodation he sought. See Exs. 20 and 25.
Harrassment
Finally, under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), complainant's harassment claim must also fail.
See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3,
6 (Mar. 8, 1994). Complainant must prove that: (1) he was subjected
to harassment that was sufficiently severe or pervasive to alter the
terms or conditions of employment and create an abusive or hostile
work environment, and (2) the harassment was based on membership in a
protected class. See id.
Complainant alleges that the Hotshot Superintendent and the Assistant IHC
Superintendent made offensive remarks based on his physical condition.
Among the remarks he alleges were stated are: �We're like a football team,
and we can't have a bunch of injured people in our starting lineup;" �You
(complainant) are a weak link in the chain;" "Even if you are released to
full duty, I can't hire you back because you are damaged goods." Exs. 17
and 51.
Even if we assume the statements were made, we still find the evidence in
the record insufficient to support a finding that the remarks created a
hostile work environment. We have repeatedly held that claims of a few
isolated incidents of alleged harassment usually are not sufficient to
state a harassment claim. See McDaniel v. Equal Employment Opportunity
Commission, EEOC Appeal No. 01A04246 (Oct. 20, 2000) (citing Philips
v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996)); Banks v. Health & Human Servs., EEOC Request No. 05940481
(Feb. 16, 1995). Moreover, we consistently find that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved.
See Backo v. United States Postal Serv., EEOC Request No. 05960227
(June 10, 1996). Although complainant was ultimately terminated after
the remarks were made, we agree with the AJ that the incidents are
completely unrelated. The individuals who allegedly made the comments
had no role or decision-making authority in complainant's termination.
Therefore, after a careful review of the record, the Commission finds
that grant of a decision without a hearing was appropriate, as no genuine
issue of material fact is in dispute. 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 toward complainant's protected class.
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:
May 9, 2006
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1Complainant mentions in the statement in support of his appeal that he
never received a copy of the agency's final order. The record however
indicates that the agency addressed the final order to complainant's
representative and issued it on March 4, 2005. We note that this did
not prevent him from filing a timely appeal.