Michael D. Storman, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionSep 7, 2000
05990112 (E.E.O.C. Sep. 7, 2000)

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.�