01964964
04-03-2000
Joseph R. Patterson, Complainant, Lawrence H. Summers, Secretary, Department of Treasury, Agency.
Joseph R. Patterson v. Department of Treasury
01964964
April 3, 2000
Joseph R. Patterson, )
Complainant, )
) Appeal No. 01964964
) Hearing Nos. 310-96-5054x
) 310-96-5096x
Lawrence H. Summers, )
Secretary, )
Department of Treasury, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On June 17, 1996, Joseph R. Patterson (hereinafter referred to as
complainant) timely filed an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the Department
of Treasury (hereinafter referred to as the agency) issued on his
equal employment opportunity (EEO) complaint in which he alleged
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The appeal is
accepted in accordance with EEOC Regulation 29 C.F.R. �1614.401 et seq.<1>
ISSUE PRESENTED
The issue presented on appeal is whether complainant was discriminated
against on the bases of his physical disability (exposure to toxic
chemicals) or in retaliation for his prior EEO activity, when he was
not accommodated by the agency and instead was given leave without pay
(LWOP) effective March 1995.<2>
BACKGROUND
The record reflects that complainant began his employment with the
agency as a Police Officer at the Bureau of Engraving and Printing,
Fort Worth Facility (facility) in August 1990. The evidence establishes
that the facility is responsible for printing United States currency.
In December 1990 he was promoted to the position of Final Verifier.
In the performance of his duties as a Final Verifier, complainant
testified that he worked inside the production area, and as such, he
was exposed to chemicals needed for processing the currency.
Complainant further stated that in 1992 he began to experience medical
problems shortly after an ink testing process began at the facility.
Symptoms included skin rashes, headaches, chronic fatigue, dizziness,
shortness of breath, stomach problems, allergic rhinitis, and sinus
problems accompanied by a burning sensation in the eyes, nose, and throat.
According to the record, complainant sought treatment for the symptoms,
and in 1994, he was diagnosed with chemical exposure, rashes, chronic
fatigue, recurrent allergic rhino sinusitis, and neurotoxicity. The
physician who examined complainant opined that, "Exposure to the smallest
amount of an incitant can cause a very harsh enhancement of ...illness.
Severe aggravation of the illness can result from even incidental or
trace exposures to inks, dyes, formaldehyde and other chemicals at work."
In a later report, the doctor specifically stated that complainant was
able to return to work with the restriction that he not work in or around
the production area where he would come in contact with any chemicals.
He reiterated that complainant was not able to tolerate any exposure
to chemicals.
As a result of this medical opinion, complainant requested a return
to work in his former position as a Police Officer with the agency.
In response to his request, the agency's medical officer performed
an employability review, in which she reviewed his medical records,
the position descriptions for a Final Verifier and Police Officer, and
all other correspondence from complainant and his physician describing
his condition. Subsequent to the review, she concluded that the agency
was not able to accommodate complainant's limitations, due to the fact
that he could not be exposed to any chemicals.
The agency responded to complainant's request by providing him the
requirements of a Police Officer, and informing him that his physician
would need to make a determination as to whether or not complainant
was physically qualified for the position. According to the record,
complainant submitted a medical statement from his physician in which
the doctor stated that he could perform the position if he was provided
a respirator or other protection before going into the production area.
According to the record, complainant then requested advanced sick leave,
but this request was denied as well on the grounds that there was no
possibility of repayment of the advanced sick leave, and no possibility
of other accommodations because of complainant's inability to be exposed
to any chemicals. Complainant thus was placed on an indefinite LWOP
status effective March 1995.
Complainant alleged in his complaint that such action was discriminatory
because the agency failed to accommodate him. Specifically, he claimed
that he could still work as a Police Officer if he was assigned an
outdoor post only, or if he was permitted to use a respirator when
he went into the production area. Complainant also claimed that the
agency found a Security Guard position for another Police Officer who
had a similar sensitivity to chemicals in the production area, and that
other employees with no prior history of EEO activity were accommodated
with other positions.
Evidence on the allegations of discrimination was presented at a hearing
before an EEOC Administrative Judge (AJ).<3> At the conclusion of the
hearing, the AJ issued a recommended decision finding no discrimination.
Specifically, with regard to issue (1), she found that complainant was not
a person with a disability, because he failed to show that his diagnosed
conditions substantially limited a major life activity. The AJ based this
decision on the evidence that complainant was not precluded from working,
inasmuch as he was working as a Security Guard in the private sector,
and he was only prevented from working in and around the production area,
where he would be exposed to chemicals.
She further found that complainant failed to show that he was able
to perform the essential duties of a Police Officer, with or without
accommodation. In this regard, she determined that it was not possible
to station complainant outside only, since the Police Officers were
required to protect the people and product of the facility, most of which
were located in the production area. Considering that the main command
center for Police Officers is located in the building, the AJ determined
that building a storage facility at the main gate where complainant
could store his weapon was not possible. She based this conclusion on
the cost and safety considerations presented by the agency. Finally,
she determined that allowing complainant to wear a respirator when he
entered the production area, would interfere with his Police Officer
duties. In this regard, she credited the testimony of agency officials
who stated that in an emergency, there would be no time for complainant
to dress in the protective gear, and moreover, it would not fit over the
gear that was part of the Police Officer's uniform. Although the agency
looked for positions for which complainant qualified, no positions could
be found that met his medical restrictions, according to the AJ.
Finally, the AJ found that complainant failed to set forth a prima facie
case of reprisal because he testified that he had not engaged in prior
EEO activity. Because of the finding that complainant failed to establish
a prima facie case, the AJ determined that there was no need to address
pretext arguments. Despite this finding, the AJ noted that there was a
difference between complainant and the comparative employees he cited.
She emphasized in this regard that complainant's physician stated that he
could not be exposed to any chemicals. While acknowledging that another
individual with similar restrictions was reassigned to the position of
a Security Guard, the AJ noted that this individual occupied a unique
position, and there was no other work of that nature to warrant creating a
similar job for complainant. Moreover, the AJ found that this individual
was provided the position prior to complainant's illness.
In a final agency decision, the agency adopted the findings and
conclusions of the AJ. On appeal, however, complainant disputes the
finding of no discrimination. He claims that he was not accommodated
by the agency because of his disability and in retaliation for his
prior EEO activity. First, complainant maintains that the AJ and the
agency erroneously concluded that he was not a person with a disability,
because he was not precluded from working as a Police Officer generally.
He claims that this test is too broad, and that he is disabled based
upon his "reduced ability" to work within the facility. He cites two
Commission decisions which he asserts stand for the proposition that
individuals who are restricted from a single job within the agency are
considered by the Commission to be persons with disabilities. At the
very least, complainant states that the agency stipulated to the fact
that complainant suffers from a disability, and termed complainant's
condition a "disability" in its pleadings. Furthermore, complainant
maintains that the agency perceived him to be a person with a disability,
and that as such, he is entitled to be accommodated by the agency.
Complainant contends on appeal that the agency did not demonstrate that
it could not have accommodated him. He states that the burden is on
the agency to show that he is not qualified because he would be a direct
threat, and that the risk of future injury is supported by a reasonable
probability of substantial harm. Although the agency presented testimony
from a contract physician attesting to the fact that complainant is unable
to be a Police Officer at the facility, he avers that her opinion is of
limited value because she failed to perform an evaluation on complainant
and did not contact complainant or his physician prior to ruling that
accommodation was not possible. Complainant also cites the fact that
the contract physician admitted that she had no personal knowledge of
complainant's reaction to chemical exposure. He maintains that the agency
should have investigated accommodation possibilities more thoroughly in
his case.
ANALYSIS AND FINDINGS
The threshold question in a case of disability discrimination is
whether the individual is a person with a disability as set forth at
29 C.F.R. �1630.2(g).<4> From the evidence presented in this case,
however, the Commission is unable to make this determination. We note
that with the consent of the AJ, the parties stipulated at the hearing
that the complainant was within the protection of the Rehabilitation
Act. Nonetheless, despite this purported stipulation, the AJ found that
complainant was not a person with a disability.
The confusion surrounding this issue is further enhanced by the lack
of individual medical evidence specifically describing complainant's
condition. Most of the medical evidence described the condition
of chemical sensitivity generally, and not complainant's specific
sensitivity. The Commission is unable to discern whether or not this lack
of evidence resulted from complainant's being misled by the stipulation,
or whether such evidence is simply unavailable. Accordingly, more
evidence on complainant's condition is needed.
In addition, the Commission finds that this case is not in posture for
a second reason. As noted, both parties focused their arguments and
evidence on the issue of accommodation, and in the agency's case, the
inability to accommodate complainant at the facility due to its currency
production goal. As part of this argument, the agency contended that
it was unable to reassign complainant because all positions within the
facility would risk exposure to the chemicals involved with currency
production. Nonetheless, the record is devoid of evidence establishing
what, if any, effort to reassign complainant to another facility,
was made. In this regard, we note that there is no evidence that the
agency obtained a list of vacancies at other facilities, and after an
individualized assessment of complainant's qualifications, determined
whether or not complainant was qualified for employment at another
facility.<5> The Commission notes that while federal law does not require
that an agency create a new position for a disabled individual or "bump"
another employee from a job in order to create a new position, the agency
must consider reassignment to a vacant position that the individual is
qualified to perform. See Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice
No. 915.002 (March 1, 1999), pp. 37-40. Given this lack of evidence, the
Commission finds that the matter must be remanded for further development
of the evidence, as outlined in the order below.<6>
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REMAND the matter to the agency for further development
of the record as outlined in the order below.
ORDER
The agency is ORDERED to supplement the record with the following:
(1) The agency shall request from complainant detailed medical evidence
which specifically describes complainant's condition, including the long
term impact, or expected impact of the exposure to chemicals, if any.
In this regard, the medical evidence shall include a description of
complainant's condition at the time of the exposure, as well as his
current physical condition. Effects that the condition has on major
life activities other than working, e.g., breathing, should be noted,
if applicable. In addition, the physician should opine about the duration
of the effects, and comment on the severity of the condition.
(2) The agency shall, after conducting an individualized assessment
ascertaining complainant's physical limitations vis a vis the position of
Police Officer and other comparable positions, consider if it could have
reassigned complainant to another facility. See 29 C.F.R. �1630.2 (o),
(p), and �1630.9. In this regard, the agency shall determine whether
any vacancies existed at other facilities, and then determine whether
complainant met the prerequisites for these positions. Second, the
agency shall identify the essential functions of these positions, and
consider whether or not complainant could perform these functions with or
without accommodations. If such accommodations would have resulted in
an undue hardship, the agency shall specifically identify the hardship.
Moreover, if no such position was available, the agency shall provide
detailed reasons for the unavailability.
(3) After gathering the evidence ordered in this matter, the agency shall
forward the evidence to the Commission for decision. Complainant shall
cooperate and assist the agency in its effort to obtain the evidence.
All evidence shall be obtained and forwarded to the Commission within
ninety (90) days from the receipt of this decision of the Commission.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
April 3, 2000
__________________ _______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Included in complainant's claim of failure to accommodate was the
allegation that the agency denied his request for advanced sick leave.
3The Commission notes that complainant's complaints were consolidated
at the hearing stage with those of two other agency employees with
similar claims.
4The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
5In meeting the obligation to consider reassigning a disabled employee,
the Commission notes that the agency has an obligation to make an
individualized assessment of the employee. See 29 C.F.R.�1630.2(o)(3).
6Given our finding that the case is not in posture for decision on the
issue of disability discrimination, the Commission will stay a decision
on the claims of reprisal and age discrimination. Upon receipt of
the evidence requested in the order, the Commission will rule upon
complainant's claims of age discrimination and retaliation, as well as
disability discrimination.