0120161826
03-27-2018
Rolf K.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rolf K.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161826
Agency No. 200H06202015101895
DECISION
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 15, 2016, final decision 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.
ISSUE PRESENTED
The issue presented is whether the Agency correctly determined that Complainant was not subjected to discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator, Wage Grade 7, at the Agency's VA Hudson Valley Health Care System facility in Montrose, New York.
On March 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when, on six occasions between January 26, 2015 and February 9, 2015, management denied Complainant the opportunity to work overtime on snow removal duties, because of his physical limitations.
The pertinent record shows that Complainant worked as a Motor Vehicle Operator (Driver). In October of 2014, the General Foreman circulated an email, offering all Drivers the opportunity to work overtime performing snow removal duties during the winter months. Complainant volunteered. Complainant received a response advising him that due to his current medical condition, he would not be permitted to work the snow detail.
As further background, Complainant injured his back in December of 2014. On December 19, 2014, Complainant's physician placed Complainant on physical restrictions, which included "no bending and no heavy lifting." Complainant had a ten-pound lifting restriction. Complainant requested a reasonable accommodation. He was granted a light duty position in which he could drive, but he was excused from any bending or lifting. The arrangement extended through February 20, 2015.
The Foreman and two other witnesses averred that snow removal duty included more than just driving. The Foreman testified that the drivers are required to lift and remove a heavy lid from the salt tank. The lid weighed 40 pounds. In addition, drivers must be prepared to climb to the top of the truck to break up clumps of salt. He testified the snow removal duties went beyond the scope of Complainant's physical restrictions.
Complainant and two other Drivers, who were on light duty due to physician ordered physical restrictions, were not offered overtime to perform snow removal duties because there was bending and lifting involved in the snow removal duties.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency determined that it did not discriminate against Complainant. It reasoned that it provided a legitimate, nondiscriminatory reason. Complainant's physician restricted Complainant from bending of lifting until his condition improved. The Agency found that Complainant failed to present evidence to support his "subjective testimony" that the snow removal duties for a Driver do not require bending and lifting and were permissible, within the scope of his physical ordered restrictions.
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged or otherwise violated the Rehabilitation Act by denying him a reasonable accommodation. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was subjected to discrimination when he was denied snow removal duty because of his disability. The Agency asks that we affirm its FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. �� 1630.2 (o), (p) EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015, Ginger N. Department of Veterans Affairs, EEOC Appeal No. 0120152080 (January 17, 2018).
An "individual with a disability" is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. Melanie F. v Dept. of Homeland Security, EEOC Appeal No. 0120150163 (May 19, 2017, citing 29 C.F.R. � 1630.2(g). Factors to determine whether an individual is substantially limited in a major life activity include: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the permanent or long-term impact, or the expected permanent or long term impact of or resulting from the impairment. Arnoldo E. v. Dept. of Justice, EEOC Appeal No. 0120121034 (Oct. 15, 2015) citing 29 C.F.R. � 1630.2(j)(2). Here, Complainant was restricted in lifting due to back injury that he sustained in December of 2014 which caused him to be unable to lift more than ten pounds or to bend. The Agency acknowledged that it perceived him as an individual with a disability.
A qualified individual with a disability is an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual hold or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. Ginger N. v. Department of Veterans Affairs, citing 29 C.F.R. � 1630(m).
Further, we note that the Agency admits that it denied Complainant the assignment to snow duty because of its perception of Complainant's inability to safely perform the functions of the assignment within his prescribed restrictions. Because the Agency determined that Complainant could not safely work on snow removal duty, we find that the Agency is stating that Complainant could not be assigned to snow duty because there was no way to accommodate his restrictions.
A person is a "direct threat" if he or she poses a significant risk of substantial harm to the health or 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 individual assessment of the individual's present ability to perform the essential functions of the job. Id. If no such accommodation exists, the Agency may refuse to place the person in the position or assignment. In the instant matter, the Agency must demonstrate its decision to not permit Complainant to perform the snow function satisfies the "direct threat" standard.
Therefore, we will analyze whether the Agency has satisfied its burden of proof to establish that allowing Complainant to perform snow duty posed a direct threat to his own safety. See Complainant v. Department of Defense (Defense Logistic Agency), EEOC Appeal No. 0120091162 (March 15, 2013). The record does not show that he was able to perform all of the essential functions of the snow removal function, as defined by the Agency. The record included testimony that the snow removal function required both lifting and bending in violation of Complainant's medical restrictions.
In this case, we find that the Agency had a legitimate concern regarding Complainant's ability to safely perform the snow removal functions. Complainant's restrictions precluded him from lifting more than ten pounds to clean the sanders. We further find that the Agency put forth sufficient evidence to show that Complainant could not perform the work in a safe manner, based on his applicable restrictions at the time. In addition, we find that the Agency established that Complainant would have posed a direct threat to himself.
Although Complainant argued that the Agency should have provided him with a reasonable accommodation by allowing him the use of two trucks that were available and which did not have sanders, we don't find the argument to be persuasive. The record shows that the snow removal function could be arduous, especially when the trucks would get stuck and have to be dug out of the ice. Consequently, we find that Complainant failed to show that the denial of the snow assignment in this case violated the Rehabilitation Act.
Accordingly, for the reasons stated here, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
March 27, 2018
__________________
Date
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.
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