05990112
09-07-2000
Michael D. Storman, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Michael D. Storman v. Department of the Treasury
05990112
09-07-00
.
Michael D. Storman,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Request No. 05990112
Appeal No. 01964112
Agency No. 95-4064
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On October 24, 1998, Michael D. Storman (complainant) initiated a request
to the Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Michael D. Storman v. Robert E. Rubin, Secretary,
Department of the Treasury (Internal Revenue Service), EEOC Appeal
No. 01964112 (October 16, 1998).<1> In 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)),
the regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation
of a material fact or law; or (2) the decision will have a substantial
impact on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b).
ISSUE PRESENTED
Whether the previous decision correctly determined that the complainant
failed to establish a prima facie case of disability discrimination.
BACKGROUND
In light of the narrow issue to be decided herein, the Commission will not
repeat the previous decision's narrative. Instead we note the following
salient facts: on January 18, 1995, complainant filed a formal complaint
that alleged he was discriminated against because of his disabilities
(tourette's syndrome, keratoconus, and periodontal diseases) and denied
a reasonable accommodation when in November 1994, the Internal Revenue
Service (IRS) failed to select him for a temporary, intermittent Clerk
position. According to the record, in September 1994, the agency was
granted direct hire authority for approximately 600 temporary positions
for the period of October 1, 1994 through March 31, 1995. As a result,
in September 1994, the IRS advertised for temporary, intermittent
employment opportunities for Distribution Clerks, Data Transcribers,
and Telephone Order Clerks at its Western Area Distribution Center in
Rancho Cordova, California. The tour of duty was established as 6:00
a.m. until 9:00 p.m. Upon applying, applicants were asked to indicate
their hours of availability. The work shifts were: 6:00 a.m. to 2:45
p.m., 6:45 a.m. to 3:30 p.m., 8:15 a.m. to 5:00 p.m., 4:00 p.m. to 9:00
p.m., and 5:00 p.m. to 9:00 p.m. An applicant had to be available for
at least one of the five shifts. All of the work shifts required a
minimum of 40 hours each week, with the exception of the 5:00 p.m. to
9:00 p.m. shift which required at least 80 hours of work a month.
On September 28, 1994, complainant applied for a position. Although his
application did not contain information about his disabilities, he did
attach a letter indicating that he and a Staffing Specialist had reached
an agreement that, as an accommodation, his working hours could be limited
to between 0 - 70 hours each month. On his application, complainant also
indicated that he could not work either the 6:00 a.m. to 2:45 p.m. or
6:45 a.m. to 3:30 p.m. shifts; that he would work the 8:15 a.m. to 5:00
p.m. shift, if he had to, but he would prefer to start at 9:00 a.m. rather
than 8:15 a.m. due to "[h]is family obligations in helping [his] wife
get [his] 4 kids ready for school." Complainant also indicated that he
was available to work the 4:00 p.m. to 9:00 p.m. or 5:00 p.m. to 9:00
p.m. shifts.
The agency received more than 1700 applications for the advertised
positions. Complainant was among 25 applicants who were not hired because
they were not available for at least one complete work shift, or because
they set conditions on their availability. Complainant's application
indicated that he was unable to perform the duties of Data Transcriber.
He also indicated a lack of availability for day shift work which
eliminated him from consideration for the Telephone Order Clerk position
and the day shift Distribution Clerk position. Although complainant
could work as an evening Distribution Clerk, he only wanted to work a
maximum of 70 hours a month. Complainant's application was referred to
the Distribution Unit Supervisor (the supervisor) in mid-November 1994.
The supervisor indicated that she rejected complainant's application
because of his lack of availability to start the swing shift at the
designated time, the fact that he could not work a full shift if required,
and his past work history, which indicated he was a potential problem
employee. Although the Staffing Specialist was aware of complainant's
disability, the supervisor maintained that she was not aware.
The agency conducted an investigation of complainant's claim, and
subsequently issued a FAD finding no discrimination in April 1996. In
the previous decision, the Commission found that, although the complainant
was a person with a disability with respect to his impairments, he failed
to establish a prima facie case of disability discrimination, because
he was not a qualified person with a disability. This determination
was based on the fact that complainant was not available to work
at least one entire work shift and therefore could not perform the
essential functions of any of the subject positions. Additionally,
the Commission found that complainant had not established a connection
between his requested accommodation, i.e., working no more than 70 hours
each month, and the limitations imposed upon him by his disabilities.
Complainant, according to the Commission's decision, presented no medical
documentation to show that his disabilities prevented him from working
more than 70 hours per month. Finally, the Commission also found that,
even if the complainant had established a prima facie case, the agency
offered a legitimate, nondiscriminatory reason for not selecting him,
that is, his lack of availability. The Commission found no persuasive
evidence to rebut the agency's contention that complainant's limited
availability played the critical factor in its decision not to hire him.
In his request to reconsider (RTR), complainant argued, in pertinent part,
that: (1) he was denied a reasonable accommodation under the Americans
with Disabilities Act; (2) he was a qualified person with a disability
because he had been a client at the Department of Rehabilitation
since 1976, has a Master's Degree, a Paralegal Degree, and 10 years of
clerical experience working for the government; (3) he was available
for 3 out of the 5 shifts that were available; (4) he was granted an
accommodation prior to applying for the Telephone Order and Distribution
Clerk positions; (5) his being allowed to work 70 out of a total of 80
hours would not have presented an undue hardship to the agency; and (6)
his case did not involve disparate treatment.
The agency did not respond to complainant's RTR.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit a written argument which tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a reconsideration request is narrow.
Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989). An RTR is not merely a form of a second appeal. Regensberg
v. USPS, EEOC Request No. 05900850 (September 7, 1990). After a careful
review of the record, the Commission finds that complainant's RTR does
not meet the regulatory criteria of 29 C.F.R. � 1614.405(b).
Under the Commission's regulations, an agency is required to make
reasonable accommodation of 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(p).<2>
To establish a prima facie case of disability discrimination, complainant
must first show that: 1) he is an individual with a disability as
defined in 29 C.F.R. � 1630.2(g); 2) he is a "qualified" individual with
a disability as defined in 29 C.F.R. � 1630.2(m)<3>; and (3) there is
a nexus between his disability and the agency's action. See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
The previous decision correctly found that the complainant was an
individual with a disability. Complainant, however, did not satisfy
the second and third prongs of the above test. Therefore, the agency
was not required to provide the accommodation he requested or address
the issue of
undue hardship. The term �qualified individual with a disability,� with
respect to employment, means a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position in question. As the previous decision indicated, complainant
could not perform the essential functions of any of the subject positions
because in no case was he available for an entire work shift. Likewise,
complainant failed to establish that there was a nexus between his
requested accommodation of working between 0-70 hours each month,
and the limitations imposed upon him by his disabilities. We note in
this regard that complainant presented no medical documentation to show
that his disabilities prevented him from working more than 70 hours per
month.<4>
With respect to complainant's fourth contention, we find that he is
merely rearguing factual matters that were considered and addressed in
the previous decision. Although he accused her of committing fraud,
complainant failed to provide any persuasive evidence that the Staffing
Specialist did anything more than explain to him the agency's policies
on hiring and accommodating people with disabilities. Merely rearguing
factual questions is not appropriate in a RTR. Bartlomain v. United
States Postal Service, EEOC Request No. 05910436 (October 10, 1991). The
remaining argument in complainant's RTR is equally unpersuasive. Although
the previous decision addressed the issue of disparate treatment, the
main focus was on complainant's failure to establish a prima facie case
of disability discrimination. Complainant failed to demonstrate that
there was a clear error in the previous decision, and we will therefore
deny his RTR.
CONCLUSION
After a review of complainant's request to reconsider, the previous
decision, and the entire record, the Commission finds that complainant's
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01964112 (October 16, 1998) remains the Commission's
final decision. There is no further right of administrative appeal from
a decision of the Commission on a request to reconsider.
STATEMENT OF RIGHTS
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_09-07-00_____________
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 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.
2The 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.
3See also Cleveland v. Policy Management Systems Corp., 526 U.S. 795
(1999).
4On the contrary, complainant indicated in his RTR that �my motor
dexterity is limited only to a mild degree in terms of my fine motor
dexterity. In fact, I have also been a good athlete as well a good
dancer.�