[Redacted], Ellsworth S., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jul 18, 2022

Appeal No. 2021001589 (E.E.O.C. Jul. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellsworth S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2021001589 Hearing No. 550-2017-00249X Agency No. FS-2016-01037 DECISION JURISDICTION 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 January 5, 2021 final order concerning his equal employment opportunity (EEO) complaint alleging 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 period at issue, Complainant worked as a Forestry Technician at the Agency’s Deschutes National Forest in Bend, Oregon. Complainant contacted an EEO Counselor and filed a formal EEO complaint on October 25, 2016, alleging that the Agency discriminated against him on the basis of disability (vision 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. 2 2021001589 loss/blindness in left eye).2 By letter dated December 20, 2016, the Agency accepted Complainant’s complaint for investigation and determined that it was comprised of the following claim: Whether Complainant was subjected to discrimination based on physical disability, when since August 30, 2016, management has failed to reassign him to a non-arduous rated position due to a workplace injury.3 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). On March 25, 2020, the Agency filed a Motion for a Decision Without a Hearing. In the motion, the Agency asserted that it provided Complainant with a letter on December 5, 2016, informing him that he was being considered for a reassignment as a reasonable accommodation. The letter included a job interest questionnaire. (ROI 184-189). The Agency asserted that on February 6, 2017, Complainant accepted and signed an Offer of Placement under Reasonable Accommodation to a Forestry Technician position, GS-0742-07, which did not include the “arduous” requirement, with an effective date of February 19, 2017. Attachment 1-2 to Agency’s Motion. The Agency in its motion further set forth that it does not dispute that Complainant is blind in his left eye and has a disability. Agency’s Motion at 8. However, the Agency asserted that Complainant was not qualified for his current Forestry Technician position based on the arduous rating and that Complainant due to his blindness cannot take and pass the Work Capacity Test (WCT) at the arduous level which is a condition of employment. Agency’s Motion at 9. Moreover, the Agency stated that, “while Complainant and his physician of record state that he can perform the essential function[s] of the position, the fact remains that he cannot meet the arduous level requirement of the position based on him being blind in the left eye.” Agency’s Motion at 10. Finally, the Agency asserted that it did not delay in providing Complainant with a reasonable accommodation. Specifically, it stated that that Complainant’s reassignment was offered and accepted within five months. Agency’s Motion at 14. In response, Complainant, through his attorney, asserted that he began the reasonable accommodation process years before his 2016 written reasonable accommodation request. Complainant’s Response at 21. 2 In 2006, Complainant stated he experienced an on-the-job injury which resulted in vision loss in his left eye. 3 However, Complainant asserts that, at least initially, he was seeking a position with an arduous rating, not a non-arduous one. Complainant states that before the accident resulting in his vision loss, he had an arduous rating which the Agency found that he did not qualify for after the accident. Complainant states that this resulted in him not advancing in his career because many of the promotional opportunities were rated as arduous positions. 3 2021001589 Complainant asserted that in March 2007, he was denied the arduous rating. Complainant’s Response at 19. Complainant asserted that for three years he tried to regain his arduous level rating which was denied by various Agency officials. Complainant’s Response at 12. Complainant stated that he contacted the Agency’s EEO offices during 2011-2016 on several occasions and was told it was not their issue. Complainant’s Response at 12. Complainant stated that after management evaded his requests for reasonable accommodation, he retained an attorney and submitted a written reasonable accommodation request asking to be reassigned in August 2016. Complainant’s Response at 14. In reply, the Agency reiterated that it reassigned Complainant to a non-arduous position and thus provided him with a reasonable accommodation. Agency’s Reply at 3. The Agency further asserts that Complainant did not initiate EEO contact until September 15, 2016 and thus Complainant’s “newly presented ‘facts’” are untimely. Agency’s Reply at 5. The Agency further asserts that Complainant did not request amendments to his initial complaint. Complaint File at 7. On December 16, 2020, the AJ issued a decision by summary judgment in favor of the Agency finding no violation of the Rehabilitation Act. The AJ found that Complainant did not establish that the reasonable accommodation process was unreasonably delayed or not effective. AJ’s Decision at 7. The AJ found that Complainant’s response contained matters that were not relevant to the issue before him or were background information. AJ’s Decision at 5-6. The Agency’s final order, dated January 5, 2021, implemented the AJ’s decision. The instant appeal followed. On appeal, Complainant, through his attorney, requests that we remand the instant matter for a hearing. Complainant reiterates that in 2006 he experienced an on-the-job injury which resulted in vision loss in his left eye. Complainant’s Brief at 3. Complainant states that before the accident he had an arduous rating which the Agency found that he did not qualify for after the accident. Complainant’s Brief at 4. Complainant states that for arduous positions there is a vision standard which requires binocular vision. Complainant states that this resulted in him not advancing in his career because many of the promotional opportunities were rated as arduous positions. Id. Complainant states that for several years he appealed the Agency’s decision with respect to his arduous rating due to the vision loss in his left eye. Complainant’s Brief at 6. Complainant also asserts, that subsequent to being denied an arduous rating, the Agency failed to accommodate his request for reassignment to a non-arduous position. Complainant’s Brief at 4-5. Complainant asserts he made verbal requests to management officials. Complainant’s Brief at 5. Complainant, on appeal, further asserts that from 2011 to 2016 he contacted the EEO Office on various occasions and was informed it was not their issue. Id. at 7. Complainant stated that an Agency official told him, with respect to being in an arduous rated position while not having an arduous rating, that “[y]ou shouldn’t rock the boat and live with it.” Id. Finally, Complainant asserts that the position that he was eventually reassigned to was not equivalent to his original position in terms of experience and skill set. Id. at 13. 4 2021001589 In response, the Agency reiterates that it provided Complainant with an effective accommodation when it reassigned him to a non-arduous position in February 2017. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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. After careful review of the record, we find that this matter warrants further development of the record and possible credibility determinations. 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, in appropriate instances, to examine and cross-examine witnesses. See Equal Employment Opportunity Management 5 2021001589 Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (Aug. 5, 2015); 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.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). We find that, during the investigation, Complainant raised an ongoing denial of reasonable claim which started upon his return to work following his on-the-job injury.4 First, Complainant is alleging that the Agency did not provide him with a reasonable accommodation, in his position at the time, by restoring him with an arduous rating upon his return to work.5 In his affidavit, Complainant states that in 2007, he began his appeal to return to arduous level work. Report of Investigation (ROI) at 91. Complainant states that for three years he tried to return to the arduous level.6 ROI at 93. Complainant states that he is capable of passing the Work Capacity Test (WCT) and “capable of doing the physically demanding portion of any position that requires an arduous rating…The only reason I am not allowed an arduous rating is because of my monocular vision.” ROI at 352. Complainant stated that “[w]hat is keeping me from taking the fitness test is the requirement of having binocular vision as stated “in the Wildland Fire Fighter Medical Standards.” ROI at 355. Complainant asserts, based on the foregoing, that there was no advancement in his position because he did not have an arduous rating.7 ROI at 96. The record warrants further development with respect to whether the Agency provided Complainant with an individualized assessment with respect to denying him an arduous rating.8 4 Complainant stated that in February 2006, while working on a forest fire, a bulldozer ran over him and caused various physical injuries. ROI at 93. 5 Complainant stated that he had an arduous rating prior to his on-the-job injury. ROI at 21, Complainant’s Response to Agency’s Motion at 9. 6 Complainant stated that his position description, at the time, required him to possess an arduous rating in the Work Capacity Fitness Test. ROI at 354. Complainant’s supervisor asserted that the arduous requirement in his position description did not reflect his actual duties and that since his on-the-job injury he has not been required to perform arduous work. ROI at 224. 7 Complainant’s supervisor acknowledged that the inability to pass the arduous fitness requirement does prevent an individual from attaining some of the qualifications necessary to progress up the career ladder in fuels management. ROI at 224. In a letter, Complainant’s supervisor stated “[r]egarding career advancement, without being cleared for arduous duties, [Complainant] is limited on achieving the operational qualifications needed to advance up the fire/fuel management career ladder.” ROI at 280. 8 In medical documentation from 2006, Complainant’s physician stated, “[t]here are several monocular patients 0out there who are actually gainfully employed and are extraordinarily high 6 2021001589 See Dong F. v. Dept of the Interior, EEOC Appeal No. 0120140109 (June 3, 2016) (the Agency violated the Rehabilitation Act when it failed to provide complainant an individualized assessment after complainant failed a vision test and the Agency determined that complainant was not medically qualified to perform arduous duties as a Law Enforcement Officer). With regard to safety requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement is job related and consistent with business necessity. The regulations provide that an agency can meet this standard by showing that the requirement, as applied to the individual, satisfies the “direct threat” analysis set forth in 29 C.F.R. § 1630.2(r); Nathan v. Dep’t of Justice, EEOC Appeal No. 0720070014 (July 19, 2013). A person is a “direct threat” if he or she poses a significant risk of substantial harm to the health and safety of him or herself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. 29 C.F.R. § 1630.2(r). The “direct threat” evaluation must be based on an individualized assessment of the individual’s present ability to perform the essential functions of the job. Id. In order to exclude an individual on the basis of future possible injury, the Agency must show there is a significant risk - in other words, a high probability of substantial harm. A speculative or remote risk is insufficient, and the Agency must show more than the individual with a disability stands some slightly increased risk of harm. The burden of showing a significant risk is on the Agency. Selix v. U.S. Postal Serv., EEOC Appeal No. 01970153 (Mar. 16, 2000). Moreover, such a finding must be based on an individualized assessment of the individual that takes into account: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur, and 4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r); Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002). A determination of significant risk cannot be based merely on an employer’s subjective evaluation, or, except in cases of a most apparent, nature merely on medical reports. Rather, the Agency must gather information and base its decision on substantial information regarding the individual’s work and medical history. Chevron U.S.A. v. Echazabal, supra; Nathan v. Dep’t of Justice, EEOC Appeal No. 0720070014 (July 19, 2013) ((finding that as part of its individualized assessment, the agency should examine adaptive behaviors and prior work experience). functioning. I believe [Complainant] would actually be one of those.” ROI at 161. In medical documentation dated October 13, 2016, Complainant’s physician set forth that, “[Complainant] can readily perform the essential functions of his current position with being monocular. There are patients who can actually accomplish their tasks at hand and only have one good eye…You would think that it would not be possible for the people to adapt, and the standard rules actually do not really apply to them. [Complainant] can perform the essential functions of his current position and his official duties without causing any danger to himself or others, in my opinion. He does exceptionally well.” ROI at 168. 7 2021001589 Subsequent to the Agency not restoring Complainant to an arduous rating, Complainant asserted that he verbally requested reassignment to a non-arduous position starting in 2011.9 ROI at 353- 354. Complainant asserted that it was not until he retained counsel in 2016 and submitted a written reasonable accommodation request that the Agency started looking for a non-arduous position for him. ROI at 354. A reasonable accommodation request need not be in writing or use the magic words of “reasonable accommodation.” See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, EEOC No. 915.002 at Question 3 (Oct. 17, 2002). The employee need only inform the agency that he needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006). Regarding the Agency’s assertion, in its Reply to Complainant’s Response to the Agency’s motion, that these matters (Complainant’s requests for reasonable accommodation prior to his written request) are untimely, we disagree.10 As discussed above, Complainant raised, during the investigation as well as in his response to the Agency’s motion, the issue of being denied a reasonable accommodation on an ongoing basis upon his return to work from his on-the-job injury. The EEOC’s Compliance Manual, Section “Threshold Issues,” p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.” Furthermore, the Commission has specifically held that that the denial of a reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. See Harmon v. Office of Personnel Management, EEOC Request No. 05980365 (Nov. 4, 1999). Regarding the issue that the Agency, in its Reply, asserts that Complainant did not expressly request an amendment to the accepted claim, the record is devoid of evidence that Complainant was advised by the EEO Investigator of the process to request to amend this issue to his current complaint. At any time prior to the agency’s mailing of the notice required by 29 C.F.R. § 1614.108(f) at the conclusion of the investigation, 29 C.F.R. § 1614.106(d) permits a complainant to amend a pending EEO complaint. See EEO MD-110, at Ch. 5, § III.B. If a complainant raises a new claim with an EEO Investigator, the EEO Investigator should instruct him to submit a letter to the agency’s EEO Director or Complaints Manager describing the new claim and stating that he wishes to amend his formal complaint to include the new claim. See id. 9 Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: 1) there are no effective accommodations that will enable the employee to perform the essential functions of his current position; or 2) all other reasonable accommodations would impose undue hardship. Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, EEOC No. 915.002 Question 24 (Oct 17, 2002). 10 While the Agency, in its Reply, asserts that Complainant in his Response to the Agency’s Motion was presenting new facts, we disagree. As set forth herein, Complainant clearly raised an ongoing denial of reasonable accommodation claim during the investigation. 8 2021001589 Once the agency is aware that a complainant is raising a new like or related claim, the agency is required to amend the complaint, acknowledge the amendment in writing, and notify the EEO Investigator to include the new claim in the investigation. See EEO MD-110, at Ch. 5, III.B.2. The AJ erred by not addressing Complainant’s ongoing denial of a reasonable accommodation claim upon his return to work from his on-the-job injury (prior to his written reasonable accommodation request in 2016). Rather, the AJ improperly found that this matter constituted only background information and/or was not relevant to the accepted issue. Based on the foregoing, we find that the AJ erred when he concluded that there was no genuine issue of material fact in this case and that the record was adequately developed for a decision without a hearing. Accordingly, we VACATE the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination and we REMAND this matter to the Agency in accordance with the Order below. ORDER Within thirty (30) calendar days from the date this decision is issued, the Agency is directed to resubmit a request for a hearing on Complainant’s behalf, along with a copy of the complaint file and a copy of this decision, to the EEOC Hearings Unit for the San Francisco District Office 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 hold a hearing and 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 9 2021001589 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 10 2021001589 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 (R0610) 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 (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 July 18, 2022 Date