0120090235
02-06-2009
Ruben C. Foley, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Ruben C. Foley,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120090235
Agency No. 200721483FAA04
DECISION
On October 6, 2008, complainant filed an appeal from the agency's
September 15, 2008 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. For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
Complainant was employed as an Air Traffic Control Specialist, AT-2152-KH,
at the Federal Aviation Administration's Minneapolis Air Route Traffic
Control Center in Minneapolis, Minnesota. Complainant states that he
has a hearing impairment which results in significant hearing loss in
both ears.
Complainant occasionally used hearing aids to perform his Air Traffic
Controller duties. At some point complainant's hearing changed, and the
hearing aids ceased to effectively allow complainant to perform the duties
of his job. Complainant stated that as his hearing deteriorated it became
more difficult to function adequately as an Air Traffic Controller.
Subsequently, on January 18, 2007, the Agency Flight Surgeon made a
determination to medically disqualify complainant. On February 14,
2007, complainant began the process for disability retirement after he
realized that he was going to be removed from his position because of
the medical disqualification.
After complainant was issued a proposed removal from employment for
failure to maintain a medical clearance,1 complainant applied for the
Support Specialist position, AT-2152-KI, MSS-1, advertised under
Vacancy Announcement No. AGL-AT-07-0135-94815. This position did
not require a medical certification, and according to the agency was
considered a promotion for complainant. Complainant requested that his
proposed removal be delayed until he was notified if he was selected for
the position; his request was granted. Complainant was notified on June
19, 2007, that he was not selected for the position.
Also during this time, complainant requested that the agency conduct a
job search for positions at the same grade or lower for which complainant
was qualified. Human Resources concluded that there were no funded
vacancies available for which complainant was qualified within the
relevant geographic area. Complainant asserts that the Support Specialist
position was a lateral transfer, and he should have been placed in that
position non-competitively.
On June 21, 2007, after complainant was notified that he was not selected
for the Support Specialist position and there were no lateral or lower
positions available, he signed paperwork which completed the processing
of his disability retirement. On July 10, 2007, complainant contacted
an EEO Counselor.
On August 27, 2007, complainant filed a formal EEO complaint of
discrimination on the basis of disability (hearing loss) when: (1) on June
19, 2007, he was not selected for the position of Support Specialist,
advertised under Vacancy Announcement No. AGL-AT-07-0135-94815; and (2)
on June 21, 2007, he was forced to complete retirement paperwork.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The agency dismissed claim 2 for untimely EEO
Counselor contact. Further, the agency concluded that complainant failed
to prove that he was subjected to discrimination as alleged in claim 1.
Complainant now appeals to the Commission.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Dismissal of Claim 2
The agency dismissed claim 2 for untimely EEO Counselor Contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Here, the agency found that complainant was notified on January 18,
2007, that he was medically disqualified from his Air Traffic Controller
position. He applied for disability retirement on February 14, 2007.
The agency asserts that complainant did not seek the assistance of an
EEO Counselor until July 10, 2007, nearly six months after he knew
or should have known that he was allegedly discriminated against.
The agency determined that based upon this information, complainant
untimely contacted an EEO Counselor in regards to claim 2.
The record reflects that complainant was not sure if he was going to have
to retire until June 19, 2007, when he was notified of his non-selection
for the Support Specialist position, and there was no similar lateral
or lower positions for which he was qualified. Complainant is not
alleging that he was discriminated against when he was forced to begin the
disability retirement process; he is alleging that he was discriminated
against when he was forced to retire after he was not selected for the
Support Specialist position or a similar lateral transfer. Therefore,
the time for seeking EEO counseling on this claim began to run on June
19, 2007. Complainant's EEO Counselor contact on July 10, 2007, was
therefore timely. Because the record contains sufficient information
upon which to base a fair and reasoned decision on this issue, we will
analyze the merits of claim 2 below.
Disability Discrimination
Complainant alleges that he was discriminated against on the basis
of his disability (hearing loss) when he was not selected for the
Support Specialist position. In order to establish a prima facie case
of disability discrimination, complainant must establish that he is
a qualified individual with a disability. See Sims v. United States
Postal Service, EEOC Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. �
1630.4 (prohibiting discrimination against qualified individuals with
disabilities). A "qualified" individual with a disability satisfies
the requisite skills and experiences for the job, and is capable of
performing the essential functions of the position with or without
reasonable accommodation. See 29 C.F.R. � 1630.2(m). To prove a prima
facie case, complainant also must show that the agency took adverse
action against him or failed to provide a reasonable accommodation,
and must demonstrate that a causal relationship exists between the
agency's reasons for its actions and complainant's disability. See Moore
v. Department of the Army, EEOC Request No. 05960093 (October 16, 1998).
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 record of such impairment; or (3) is regarded as having such
an impairment. See 29 C.F.R. � 1630.2(g) (1)-(3). A physical impairment
includes any physiological disorder affecting, inter alia, neurological,
musculoskeletal, and/or endocrine systems. See 29 C.F.R. � 1630.2(h)(1).
The impairment must substantially limit complainant, or significantly
restrict him as to the condition, manner, or duration under which
he performs a particular major life activity as compared with the
performance of the average person in the general population. See 29
C.F.R. � 1630.2(j)(1)(ii).
Here, we will assume, for the sake of argument only, that complainant
has established that he is a qualified individual with a disability.
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, complainant was not the best-qualified for
the position. The Human Resources Specialist found that complainant
was "qualified" for the position, but not "well-qualified," which was
the ranking given to the four individuals selected for an interview.
Complainant was only ranked "qualified" because he did not demonstrate
experience in analyzing organization and operational procedures, and
effectively communicating and presenting solutions and recommendations.
By comparison, all of those selected for an interview provided examples
of analyzing organizational and operational procedures.
Complainant must now establish, by a preponderance of the evidence,
that they agency's articulated legitimate, nondiscriminatory reasons
are pretext for discrimination. In a non-selection case, pretext
may be demonstrated by a showing that complainant's qualifications are
observably superior to those of the selectee. See Williams v. Department
of Education, EEOC Request No. 05970561 (August 6, 1998). We note that
on appeal complainant alleges that he had "comparable qualifications"
to the individual ultimately selected for the position. The record
does not establish that complainant's qualifications were superior.
Further, the applicants were given numerous questions to answer that
were used as "Quality Ranking Factors" (QRF). The record supports the
agency's articulation that those selected for an interview thoroughly
answered their QRF questions in regards to giving specific examples
of when they effectively analyzed procedures and presented solutions
and recommendations. Complainant, on the other hand, did not provide
specific examples when answering his QRF questions. Complainant failed
to offer evidence that would establish that his disability more likely
than not played a factor in the agency's decision not to select him
for the position. Therefore, we affirm the agency's finding of no
discrimination.
Reasonable Accommodation
Complainant also alleges that he was discriminated against on the
basis of his disability when the agency did not reasonably accommodate
his disability by transferring him non-competitively into the Support
Specialist position. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical and
mental limitations of a qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship. 29
C.F.R. �� 1630.2(o) and (p). A reasonable accommodation may consist
of modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held is customarily
performed that enables a qualified individual with a disability
to perform the essential functions of that position. 29 C.F.R. �
1630.2(o)(ii). Complainant may use "plain English" and need not mention
the Rehabilitation Act or use the phrase "reasonable accommodation" when
requesting a reasonable accommodation. See EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915.002, Question 1 (as revised October 17, 2002)
("Reasonable Accommodation Guidance").
Assuming, for the sake of argument only, that complainant is an
individual with a disability, we find that complainant requested a
reasonable accommodation when he requested that the agency place him in
an equal or lower position that did not require a medical clearance.
Complainant asserts that he should have been placed into the Support
Specialist position non-competitively, as it was a lateral transfer
and not a promotion. The record supports complainant's assertion that
the pay bands for an AT-2152-KH position, such as complainant's, and
an AT-2152-KI position, such as the Support Specialist position, were
identical. Complainant avers that if the Support Specialist position
was a promotion, it was a promotion in name only.
The agency asserts that the duties of the Support Specialist position
render it a promotion for complainant. Specifically, under the Air
Traffic Specialized Pay Plan, an employee who is moving from a CPC
H-level position, such as complainant's Air Traffic Controller position,
to a Support Specialist MSS-1 position is considered promoted because the
employee moves to a higher career-level position. A higher career-level
position could lead to increased promotion potential, increased detail
potential, and other employment benefits. Since the position was a
promotion, complainant had to compete for the position and could not be
laterally transferred.
Reassignment is the accommodation of last resort. Ghannam v. Agency
For International Development, EEOC Appeal No. 01990574 (November 9,
2000); EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, Number 915.002
(Guidance) (March 1, 1999), p. 33. While complainant desires a position
as Support Specialist, an agency is only required to place a qualified
individual with a disability in a lateral position or, should one not be
available, in a lower-graded position. An agency is not required place
the individual into a higher-graded position in an effort to satisfy
an accommodation request. Guidance, p. 34. The record supports the
agency's articulation that a MSS-1 position is considered a higher
career-level position than a CPC H-level position within the agency.
While the pay bands may be the same, we cannot second-guess an agency's
policy determination of what it considers a higher career-level position.
The record supports the agency's assertion that it attempted to find
an equal or lower-level position for which complainant was qualified,
but that no position was available. Therefore, we find that the agency
did not discriminate against complainant in this regard.
Forced Retirement
Complainant alleges that the agency's alleged discriminatory actions
forced him to retire. A fair reading of the record reveals that
complainant is alleging a constructive discharge claim. With regards
to forced retirement, constructive discharge occurs when an employer
deliberately renders an employee's working conditions so intolerable
that the individual is forced to retire from his position. Constructive
discharge only occurs when the agency's actions were taken with
the intention of forcing the employee to retire. The Commission has
established three elements which complainant must prove to substantiate a
claim of constructive discharge: 1) a reasonable person in complainant's
position would have found the working conditions intolerable; 2) the
conduct causing the intolerable working conditions is an EEO violation;
and 3) complainant's resignation was caused by the intolerable working
conditions. See Taylor v. Army and Air Force Exchange Service, EEOC
Request No. 05900630 (July 20, 1990); see also Perricone v. United States
Postal Service, EEOC Request No. 05900135 (June 11, 1990). As discussed
above, the agency's conduct did not amount to discrimination, and hence
was not an EEO violation. Therefore, complainant has failed to establish
that his alleged forced retirement was a constructive discharge.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision because a preponderance of the evidence in the record
does not establish that discrimination existed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 6, 2009
Date
1 Complainant does not challenge the removal from the Air Traffic
Controller position in this complaint.
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0120090235
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120090235