01A0098
06-20-2002
Philip J. Baduini, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Philip J. Baduini v. Department of the Navy
01A00928
June 20, 2002
.
Philip J. Baduini,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A00928
Agency No. DON9-000234-002
Hearing No. 170-98-8283X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning his 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
Vacates and Remands the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Supply Systems Analyst GS-2003-13 at the agency's Naval
Supply Command, Crystal City, Virginia facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on November 21, 1996,
alleging that he was discriminated against on the basis of disability
( blindness) when the agency failed to provide him with a reasonable
accommodation of reassignment or a work-at- home option when his unit
relocated to Pennsylvania.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination because even though he was an individual
with a disability, he failed to establish that he needed an accommodation.
More specifically, the AJ found it undisputed that complainant is
an individual with a disability because of his visual impairment.
The AJ concluded however, that complainant failed to show he needed
an accommodation to perform the essential functions of his position.
The AJ reached the conclusion that complainant's only argument for
an accommodation concerned his diminished quality of life and that
complainant failed to cite to any authority supporting the proposition
that the agency must provide the accommodation of relocation where
convenience is the only issue. According to the AJ, there was no
evidence that complainant's new work location was not a suitable or
appropriate community for the visually impaired. For that reason, the AJ
determined that the agency did not fail to make a needed accommodation.
Consequently, the agency was not required to retain complainant on
the Priority Placement List, explore a reassignment to the Washington,
D.C. area or consider putting him in the flexi-place program.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ
erred in granting summary judgment based on the failure to show that a
reasonable accommodation was necessary to perform the duties of his job.
Complainant argued that it was error for the AJ to focus solely on
whether he could perform the basic functions of the job and not to
consider whether he needed modifications to non-job related areas to
enable him to enjoy the same benefits and privileges of employment that
others do. Complainant claims that he showed he needed an accommodation
of flexi-place or reassignment because of the hardships placed on him
as a blind person living in Mechanicsburg, Pennsylvania. He further
argued that the agency failed to demonstrate it was an undue hardship
to grant him flexi-place because others similarly displaced were allowed
flexi-place or were reassigned to other positions.
The agency argued that the AJ was correct in finding that complainant
failed to establish a prima facie case of disability discrimination
because there was no evidence that the agency failed to provide him with
a needed accommodation. The agency claims that complainant is able to
perform the essential functions of his job even without the accommodations
complainant claims he needs. For this reason, the agency argued that
it was not obligated to provide him with an accommodation outside of
those necessary to enable him to perform his job.
The agency states that even assuming complainant was entitled to be
reassigned, the agency determined that there were no vacant funded
positions in the D.C. area and that of the few positions in complainant's
unit that remained in D.C., complainant was not qualified for them.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, we find that the AJ erred when he
concluded that there was no genuine issue of material fact in this case.
In particular, the evidence indicated a dispute regarding whether
complainant needed an accommodation when his position was relocated to
Mechanicsburg, Pennsylvania. For instance, complainant stated that
because of his visual impairment, which renders him unable to drive,
he experienced danger and difficulty in commuting to work because there
was no public transportation to his work site. The statement of a
social worker supported complainant's claim that the Mechanicsburg area
lacked public transportation to complainant's work site. The record
also contained the statement of complainant's doctor who supported
the fact that because of complainant's condition, he needs to use
public transportation. The Commission has recognized that agencies
may be responsible for accommodating an employee related to their
daily commute to work such as modifying a work schedule or applying
a work-at-home policy where it would be an effective accommodation and
would not be an undue hardship. EEOC's Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act at p. 46. (March 1, 1999); see also Mitchell v. United States Postal
Service, EEOC No. 01A03170 (August 27, 2001), Hupka v. Department
of Defense, EEOC No. 02960003 (August 13, 1997); Kubik v. Department
of Transportation, EEOC No. 01973801 (July 11, 2001). Furthermore,
our regulations cite to the need to modify or adjust the manner or
circumstance under which a position is held and is performed which we
view as encompassing the agency's responsibility to consider work-at-home
and flexi-place arrangements. 29 C.F.R. � 1630.2(o)(1)(ii), 2(ii).
Because we conclude that there is a dispute whether complainant needed
an accommodation related to his relocation, in the event the finder
of fact concludes that the answer is in the positive, it will become
necessary to resolve the issue what accommodations were available.
On this issue, the evidence is also in conflict because complainant
disputes that the agency adequately explored reassignment and other
options that he requested. Specifically, complainant testified that
positions were available for which he was qualified and to which he
could have been reassigned. The agency flatly contests that complainant
was qualified for these positions and consequently, there is an issue
that needs to be resolved at an evidentiary hearing. Furthermore, the
Staffing and Classification Specialist assigned to complainant's unit,
testified that he was not consulted in considering complainant for a
reassignment and that he would have taken certain steps in looking for a
position for complainant. Complainant's supervisor, on the other hand,
testified that he attempted to reposition complainant. The record,
in our view, contains an unresolved issue regarding the sufficiency of
the agency's search which must be settled by the fact finder.
Complainant identified other options for accommodating his request
to be reassigned such as modification of the agency's rules regarding
priority placement and job swapping. Here, the agency argues that the
rules regarding priority placement barred complainant from remaining
on the list because he was no longer displaced after having accepted
a position in Mechanicsburg. The agency does not state, however,
whether the program allowed for modifications for purposes of providing a
reasonable accommodation. Similarly, the agency invoked the rule that job
swapping took place between employees and was not a program in which the
agency became involved. The record is incompletely developed on the issue
whether the agency could intervene or modify its rules regarding these
programs when it sought to accommodate an employee with a disability.
We note that the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 7, page 7-1; see also
29 C.F.R. � 1614.109(e). �Truncation of this process, while material
facts are still in dispute and the credibility of witnesses is still
ripe for challenge, improperly deprives complainant of a full and fair
investigation of her claims.� Mi S. Bang v. United States Postal Service,
EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). In summary, there are unresolved issues with regard
to whether complainant needed an accommodation when his position was
relocated to Mechanicsburg, Pennsylvania, and if so, whether the agency
adequately considered and explored reassignment or some other form of
accommodation.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the Baltimore District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 20, 2002
Date