01a46108
06-16-2005
Margaret G. Fortin, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Margaret G. Fortin v. Social Security Administration
01A46108
June 16, 2005
.
Margaret G. Fortin,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A46108
Agency No. 03-0087-SSA
Hearing No. 150-2003-09541X
DECISION
Complainant filed the instant appeal concerning her equal employment
opportunity (EEO) complaint alleging unlawful employment discrimination,
brought pursuant to Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission
accepts the appeal.<1> 29 C.F.R. � 1614.405.
Complainant, a Service Representative at the agency's Vero Beach,
Florida facility, returned to work in August 2001, after a surgical
procedure which left her with a vocal cord dysfunction. Complainant
advised management that she was extremely limited in her ability to
talk (no more than 15 minutes per day), and that she could no longer
perform service window or telephone interviews. Complainant advised the
agency that the only duty she could perform was written correspondence.
The agency declined to provide this as a reasonable accommodation,
but instead offered to reassign complainant to a clerical position
at a nearby facility. Complainant thereafter filed a union grievance.
As a result of the grievance, the agency permitted complainant to perform
only written correspondence duties. However, after a clerk who performed
back-up telephone and service window duty for the service representatives
resigned in August 2002, complainant's supervisor (S) instituted a
rotational back-up system to cover the telephones and service window.
S advised complainant that she would be expected to participate in at
least a limited manner. When complainant declined to comply, S advised
her to consider disability retirement. Complainant retired in April 2003.
Complainant filed the instant formal EEO complaint on November 26,
2002, claiming discrimination on the basis of disability (vocal cord
dysfunction) when:
(1) The agency failed to provide her with a reasonable accommodation;
The agency did not grant her an award in 2002;<2> and
The agency forced her to retire.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ determined that there was no dispute that complainant was
disabled because she had an impairment which substantially limited
her in a major life activity, as defined under the Rehabilitation Act.
However, the AJ further determined that the record failed to show that
she was a qualified individual with a disability because she could not
perform the essential functions of her Service Representative position.
Specifically, the AJ determined that the Service Representative position
had three core functions: answering the telephone, working the service
window, and processing the paperwork. The AJ next determined that
only the first two, i.e., working the service window and answering
the telephone, were essential functions of a service representative
position because they must both be performed daily for the facility to
be open and attend customers. The AJ rejected complainant's argument
that the "central function" of the position was to communicate with the
public, which could be accomplished via written correspondence. The AJ
also rejected complainant's argument that because the official Service
Representative position description separates the three core functions
with the conjunction "or," performing any one of them would be performing
the essential function(s) of the position. The AJ found that complainant
would not simply "pick and chose" which functions of a position are
"essential," and that to do so would fundamentally alter the position.
Additionally, the AJ found that there was no dispute that all the service
representatives performed all three functions, as did complainant prior
to her surgery, and that service representatives are hired specifically
to interview and orally interact with agency customers. The AJ also
noted record testimony that many customers chose not to conduct their
business in writing, and that even processing the paperwork frequently
requires oral communication with the customer, possibly extensive.
Next, the AJ determined that complainant could not perform the essential
functions of a Service Representative position, with or without a
reasonable accommodation. The AJ found that medical evidence confirmed
that complainant was limited to only 15 minutes of conversation per day,
such that she could not perform the verbal demands of either the service
window or telephone duty without a reasonable accommodation. The AJ
also found that complainant could not perform these duties even with a
reasonable accommodation. Specifically, the AJ determined that the only
possible accommodation was to shift complainant's telephone and window
duties to co-workers, which, as a temporary measure in 2001, resulted
in impaired customer service and extremely low co-worker morale. The AJ
also found that the agency offered complainant assistive devices (voice
enhancing and ergonomic equipment), as well as a reassignment to a larger
office which had purely clerical positions, but that complainant rejected
these offers. The AJ determined that complainant instead demanded to
perform only written correspondence duties as a reasonable accommodation.
Based on the above analysis, the AJ concluded that the accommodation
requested by complainant would not allow her to perform the essential
functions of her position. The AJ noted that reassignment must be
considered when there are no reasonable accommodations which would allow
a disabled individual to perform the essential functions of a position.
However, the AJ determined that complainant failed to show that "more
likely than not," there was a suitable funded vacancy during the
relevant time. Further, the AJ found that complainant failed to show
that she could perform any specific job that existed at the agency,
or that there were trends or patterns of turnover so as to make a
suitable vacancy likely to occur during the relevant time. In fact,
as previously referenced, the AJ found that complainant made no effort
to cooperate in exploring reassignment as a reasonable accommodation,
thereby precluding this as an option.
The AJ concluded that complainant failed to show that she could perform
the essential functions of a Service Representative position, with or
without a reasonable accommodation, so that she failed to establish
that she is a qualified individual with a disability. Furthermore, the
AJ concluded that redistributing complainant's duties to co-workers
created an undue hardship on the agency. Accordingly, the AJ found
that complainant failed to prove, by a preponderance of the evidence,
that the agency discriminated against her based on her disability.
On appeal, complainant continues to dispute the AJ's findings as to the
essential functions of complainant's Service Representative position.
In particular, complainant agues that this position does not exist
to answer the telephones and wait on customers at the service window.
Complainant argues that she could perform her job satisfactorily when
she only performed correspondence duties, and that the agency failed to
show that this accommodation was an undue burden.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In order to be afforded the protections of the Rehabilitation Act,
complainant must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). The term
"qualified individual with a disability," with respect to employment,
is defined as a disabled individual who, with or without a reasonable
accommodation, can perform the essential functions of the position held
or desired. See 29 C.F.R.� 1630.2(m).
At 29 C.F.R. � 1630.2(n)(2), a function of a position may be essential
if:
1. the position exists to perform the function;
2. there are only a limited number of workers who can perform the
function;
3. the function is highly specialized, and/or
4. performance of the function requires the expertise of the incumbent.
Furthermore, at 29 C.F.R. � 1630.2(n)(3), the Commission's regulations
indicate that evidence of whether a particular function is essential may
include: the employer's judgment as to which functions are essential;
official job descriptions; the amount of time spent on the job performing
the function; the consequences of not requiring the incumbent to perform
the function; the collective bargaining agreement; work experience of
past incumbents in the position; and experience of current incumbents
in similar jobs.
Moreover, the term "position" is not limited to the position held by the
employee, but also includes positions that the employee could have held
as a result of reassignment. See Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o).
Here, notwithstanding complainant's arguments to the contrary, we find
that the evidence of record overwhelmingly demonstrates that the Service
Representative position requires oral interaction with customers to
provide the services sought, and that this is accomplished by means of
waiting on customers via the telephone and face-to-face at the service
window. We concur with the AJ's finding that without these functions,
the facility would not be operational, and that Service Representatives
are hired primarily to interact orally with customers. Therefore,
we find that the AJ correctly determined that answering the telephones
and waiting on customers at the service window are essential functions
of complainant's position.
We further find that the medical evidence is clear that complainant
is unable to engage in this level of oral communication because of her
vocal cord disability, such that the AJ properly determined that she
cannot perform the essential functions of her position with or without
an accommodation. In this regard, we find that the AJ correctly found
that distributing complainant's telephone and service window duties to her
co-workers was not an effective accommodation, because it did not enable
her to perform the essential functions of her position, and because it
had an unacceptable impact upon both working conditions and service to
the public. Finally, we find that the AJ properly found that complainant
failed to demonstrate that reassignment was available as a last resort
reasonable accommodation, noting in particular that she rejected the
agency's efforts to find her a suitable position at a larger facility.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We find
that the record supports a finding that the agency did not violate the
Rehabilitation Act when it declined to provide complainant with the
accommodation she requested, or when it declined to retain her in her
Service Representative position, because of her inability to perform
the essential functions of that position, ultimately resulting her in
disability retirement. We discern no basis to disturb the AJ's decision
in this case.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the AJ's decision .
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
June 16, 2005
__________________
Date
1According to the record before us on appeal, the agency did not issue
a final action in this matter. Therefore, we find that the decision
of the Administrative Judge, issued on August 18, 2004, became final,
and appealable, 40-days after the agency's receipt. See 29 C.F.R. �
1614.109(i) and 29 C.F.R. � 1614.403.
2The Administrative Judge's decision does not address the merits of this
claim, and neither party makes any reference to it on appeal. Therefore,
it shall not be further addressed herein.