01a51902
03-28-2005
Patricia Nutter, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Patricia Nutter v. Department of the Navy
01A51902
March 28, 2005
.
Patricia Nutter,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A51902
Agency No. DON 02-68522-001
Hearing No. 280-2004-00226X
DECISION
Complainant timely initiated an appeal from the agency's December
2, 2004 final order concerning her 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.
During the relevant time, complainant was employed as a Human Resources
Assistant (Military), GS-0203-05, Individual Mobilization Augmentee
Section, at the agency's Marine Corps Reserve Support Command in
Kansas City, Missouri. On February 21, 2002, complainant requested a
designated parking space in front of the building because of her end
stage renal disease and dialysis treatment. She attached a February 21,
2002 �Physician's Statement for Disabled Person's Plates/Placard� to her
request which stated that she had a permanent disability and could not
walk fifty feet without having to stop to rest. The agency responded
in a March 15, 2002 letter noting that as a result of force protection
issues brought on by the September 11, 2001 terrorist attacks, the
agency only had three handicapped parking spaces in the front lot and
seven handicapped parking spots in the back lot. The agency informed
complainant that it was treating her February 21, 2002 letter as a
request for a reasonable accommodation and asked for additional medical
information to better evaluate her request.
Complainant supplied a March 28, 2002 letter from her doctor stating
that as a result of complainant's permanent disability, her �exercise
tolerance is extremely poor, [and she] find[s] it difficult to ambulate
greater than 50 feet without having to stop to rest.� The doctor stated
that complainant should qualify for a handicapped parking space that is
sufficiently near the entry to her work space to allow her easy access
given her disability and if this cannot be accommodated, �having someone
drive her to the front door may be a viable alternative.�
On April 12, 2002, the agency denied complainant's request for a personal
parking space. On May 1, 2002, the Chief of Staff, sent complainant
an electronic mail message to complainant requesting that they continue
their ongoing discussions regarding on accommodation for her. In a May 2,
2002 electronic mail message, complainant stated that she did not want
to meet to discuss further accommodations. On May 9, 2002, the Chief
of Staff sent a letter to complainant informing her that a designated
handicapped parking space would not meet her needs since there were
no parking spaces within fifty feet of the building entrances due to
force protection issues. The Chief of Staff informed complainant that
the agency would be instituting a policy whereby all disabled agency
personnel would be able to contact a designated employee to bring a
wheelchair to the parking lot to wheel them into the building.
The record reveals that the agency implemented a wheel chair service
and complainant used this service on sixteen separate occasions from May
31, 2002, until February 13, 2003. In a preliminary conference on her
complaint, complainant asserted that on one occasion when she used the
agency wheelchair service, the individual pushing the wheelchair ran into
a cubicle and injured her leg. Additionally, complainant stated that on
occasion she had to wait in the parking lot for the agency wheelchair
service to arrive. The record reveals that complainant was instructed
to contact the agency wheelchair service prior to her arrival so that
someone could meet her in the parking lot, however, she stated that she
did not always have a cell phone to do this. Complainant stated that
as a result she was late for work on occasion; however, no disciplinary
action was taken against her as a result.
Complainant filed a formal complaint dated April 29, 2002, alleging that
she was subjected to discrimination on the basis of disability (paroxysmal
arterial fibrillation, Type 2 diabetes, hypertension, osteoarthritis and
renal failure) when: the agency failed to provide her with a designated
handicap parking spot located in the front of the facility.<1> Following
the investigation of her complaint, complainant requested a hearing
before an EEOC Administrative Judge (AJ) on her complaint.
On October 18, 2004, the AJ issued a decision without a hearing, noting
that it was undisputed that complainant was disabled within the meaning
of the Rehabilitation Act and therefore entitled to an accommodation.
However, the AJ also noted that it is undisputed that complainant's
request for an assigned parking space would not be a reasonable
accommodation for her because the parking space did not exist within fifty
feet of the building. The AJ noted that the agency provided complainant
with an employee who wheeled her into the building in a wheelchair.
The AJ concluded that this was a reasonable and effective accommodation.
The Commission's regulations allow an AJ to issue a decision without a
hearing when she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). 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. 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. Id. at 249. 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. Id. at 255. An issue of fact is "genuine" if the evidence
is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver
v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, a
hearing is required. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
upon a determination that the record has been adequately developed
for such disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. We note that there is no challenge by the agency
to the AJ's finding that complainant is an individual with a disability
within the meaning of the Rehabilitation Act. We find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We concur with the AJ's
finding that complainant failed to establish that the agency violated
the Rehabilitation Act with regard to her request for the reasonable
accommodation. As found by the AJ, after complainant requested the
accommodation of a personal parking space, the agency implemented a
wheelchair service to wheel complainant from the parking lot to her
building. There is no evidence that the wheelchair service was made in bad
faith or that the wheelchair service was an ineffective accommodation.
The Commission has stated that the agency is not required to provide
the reasonable accommodation that the employee wants. The employer may
choose among reasonable accommodations as long as the chosen accommodation
is effective. Thus, we concur with the AJ's finding that complainant
was not discriminated against by the agency.<2>
Accordingly, the agency's final order finding no discrimination is
AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 28, 2005
__________________
Date
1The agency originally dismissed the subject complaint pursuant 29
C.F.R. � 1614.107(a)(5), on the grounds that it was moot. Complainant
appealed the agency's dismissal to the Commission which reversed the
agency's dismissal in EEOC Appeal No. 01A24324 (August 1, 2003), req. for
recons. den., EEOC Request No. 05A31260 (September 30, 2003).
2The Commission does not address in this decision whether complainant
is a qualified individual with a disability.