[Redacted], Beth G., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003730 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003730 Hearing No. 490-2015-00169X Agency No. DON-14-00022-03505 DECISION On June 16, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 9, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked for the Agency as a Sign Language Interpreter, GS-09, in Millington, Tennessee. On October 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when, from July 22, 2013 to the present, she was not accommodated for her disability and the Agency failed to find her a suitable position for which she was qualified. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020003730 2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 25, 2020 motion for a decision without a hearing and issued a decision by summary judgment on April 7, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that no discrimination was established. This appeal followed. 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Complainant contends that the Agency discriminated against her when it failed to accommodate her. In order to establish that the Agency denied her a reasonable accommodation, Complainant must show that: (1) she is an “individual with a disability,” as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, 2020003730 3 EEOC No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). We will assume, for the purpose of analysis only, that Complainant has a disability. The Rehabilitation Act requires that the Agency provide a reasonable accommodation to a qualified individual with a disability, absent undue hardship. 29 C.F.R. § 1630.9. A qualified individual with a disability is an individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.2 29 C.F.R. § 1630.2(m); Julius C. v. Dep't of the Air Force, EEOC Appeal No. 0120151295 (June 16, 2017). “Essential functions” are the fundamental job duties of the employment position that the individual holds or desires. 29 C.F.R. § 1630.2(n). The Commission's Enforcement Guidance also explains that an employer does not have to eliminate an essential function of a position to accommodate an individual with a disability. Enforcement Guidance at “General Principles;” Gerald L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130776 (Nov. 10, 2015). The record reflects that Complainant was employed with the Agency as a sign language interpreter with responsibilities including interpreting/transliterating services for the Agency's deaf/hard-of-hearing employees. Since 2009, Complainant was diagnosed with bilateral shoulder tendonitis, elbow impairment, and problems with her right rotator cuff. She was prescribed a wrist brace, therapy exercises, pain medication, muscle relaxers, and anti-anxiety medication. In March and April, 2013, Complainant informed her supervisor that she could no longer perform interpreting services for extended periods of time and requested light duty. On May 28, 2013, Complainant completed a reasonable accommodation form due to her limited ability to use her right extremity which resulted in losing the ability to perform the essential functions of her interpreting job. On July 22, 2013, Agency accommodation personnel determined that Complainant could not be accommodated in her current position because she was unable to perform the essential interpreter duties required for the job. Here, we will assume that based on her ongoing medical condition, Complainant was an individual with a disability within the meaning of the Rehabilitation Act. However, the discussion of whether or not she was “qualified” does not end at consideration of Complainant's interpreter position, a position for which she was no longer qualified. Once the Agency has determined that an individual cannot be accommodated in his or her current position or that such accommodation would impose an undue hardship on the agency, then reassignment, the accommodation of “last resort,” must be considered. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance), No. 915.002 (March 1, 1999); Essenfeld v. National Security Agency, EEOC Appeal No. 01961377 (December 12, 1997); Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o). In determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers to determine whether there is a position to which the employee can be reassigned. 29 C.F.R. § 1630, App. 2(o). In order to determine the appropriate reasonable accommodation, the Rehabilitation Act states that it may be necessary for the agency “to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3). 2020003730 4 The purpose of this process is to clarify what the individual needs and identify the appropriate reasonable accommodation. See Enforcement Guidance, No. 915.002, question 5 (March 1, 1999); see also Barnett v. U.S. Air, Inc. 228 F.3d 1105, 1111-2 (9th Cir. 2000). The interactive process allows for communication between the employee, who holds information as to his or her capabilities and limitations and is in a better position to assess the effectiveness of a proposed accommodation, and the employer, who has more knowledge about the range of possible positions and their essential functions. Barnett, 228 F.3d at 1113. The record shows that Complainant was notified that a job search revealed no local positions for which Complainant’s restrictions could be accommodated. The Agency further requested that Complainant accept or decline the option to be considered for reassignment. Complainant accepted the Agency's offer for consideration for positions anywhere in Florida. On March 18, 2014, Complainant was notified that she had been tentatively selected for the position of Medical Records Technician, GS-0675-04, at the Agency's Naval Hospital in Pensacola, Florida. On April 1, 2014, Complainant declined the position indicating that she believed her medical restrictions could not be accommodated in the position. Specifically, although the Agency offered assistive devices as an accommodation, Complainant stated that her medical documentation restricted her lifting to five pounds on her left and right upper extremities. In June 2014, Complainant applied for disability retirement. The paperwork Complainant submitted for disability retirement revealed that she had not been to work since January 2013, that she had used 2859 hours of leave without pay and that she had not been assigned to a light duty or new permanent position. Complainant's disability retirement paperwork further disclosed that medical evidence presented to the Agency showed that accommodation in her interpreter position was not possible due to the severity of Complainant’s medical condition and the physical requirements of the position, that no light duty positions were available locally. In addition, in her disability application, Complainant noted that the Agency had conducted a local job search in addition to an expanded job search throughout the Agency. However, based on the limitations identified by Complainant’s physician, there were no accommodations that could be made to allow Complainant to perform the essential functions of her position, and that reassignment was not possible. The record is unclear what happened after Complainant’s paperwork for disability retirement was processed. The record indicates that Complainant was provided with thousands of hours of leave, paid, donated and unpaid, while attempting to recover/improve her medical condition. A reasonable accommodation team concluded that Complainant could not perform the essential functions of her interpreter position with or without an accommodation. Complainant agrees with this conclusion. The Agency searched locally and then in further locations approved by Complainant, including Florida. Complainant was offered reassignment to a Medical Records Technician position, but declined it because she did not believe she could perform in the position within her medical restrictions. 2020003730 5 In sum, we find that the weight of the evidence fully supports the AJ’s conclusion that Complainant was not found qualified for any vacant funded position with the Agency where she could have worked with or without accommodation. As such, we find no violation of the Rehabilitation Act has been established. CONCLUSION We AFFIRM the Agency's final order adopting the AJ’s finding of no discrimination without a hearing. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020003730 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 4, 2021 Date