Samuel T. Cobb III, Complainant, Lawrence H. Summers, Secretary, Department of Treasury, Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01965074 (E.E.O.C. Apr. 3, 2000)

01965074

04-03-2000

Samuel T. Cobb III, Complainant, Lawrence H. Summers, Secretary, Department of Treasury, Agency.


Samuel T. Cobb III v. Department of Treasury

01965074

April 3, 2000

Samuel T. Cobb III, )

Complainant, )

) Appeal No. 01965074

) Hearing Nos. 310-96-5054x

) 310-96-5096x

Lawrence H. Summers, )

Secretary, )

Department of Treasury, )

Agency. )

______________________________)

DECISION

INTRODUCTION

On June 17, 1996, Samuel T. Cobb, III (hereinafter referred to as

complainant) timely filed an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the Department

of Treasury (hereinafter referred to as the agency) issued on his

equal employment opportunity (EEO) complaint in which he alleged

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq., Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the

Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. �621

et seq. The appeal is accepted in accordance with EEOC Regulation 29

C.F.R. �1614.401 et seq.<1>

ISSUES PRESENTED

The issues presented on appeal are: (1) whether complainant was

discriminated against on the bases of his physical disability (exposure

to toxic chemicals), age (over 40), or in retaliation for his prior

EEO activity, when he was not accommodated by the agency and instead

was given leave without pay (LWOP) effective March 8, 1995; and (2)

whether complainant was retaliated against for filing the above mentioned

complaint of age, disability and reprisal discrimination when he was

denied access to the Western Facility on or about May 3, 1995.<2>

BACKGROUND

The record reflects that complainant is employed by the agency as a

Lead Police Officer at the Bureau of Engraving and Printing, Fort Worth

Facility (facility), and has been so employed since 1992. The evidence

establishes that the facility is responsible for printing United States

currency, and that as a Police Officer at the facility, complainant

was charged with protecting personnel, product (currency) and property.

In the performance of these duties, complainant testified that he was

required to enter the production area where the currency was made.

Complainant further stated that in early 1992, he began experiencing

shortness of breath, rashes, stomach problems, dizziness, and headaches.

According to the record, complainant sought treatment for the symptoms,

and in 1994, he was diagnosed with chemical exposure and neurotoxicity.<3>

The physician who examined complainant opined that, "Exposure to the

smallest amount of an incitant can cause a very harsh enhancement of

...illness. Severe aggravation of the illness can result from even

incidental or trace exposures to inks, dyes, formaldehyde and other

chemicals at work." As a result of this medical opinion, complainant

requested accommodation from the agency. Although he was granted

eighty hours of advanced sick leave, the agency's Safety Inspector

informed complainant that the agency was not able to accommodate his

medical restrictions. He thus was placed on an indefinite LWOP status

effective March 1995.

Complainant alleged in his complaint that such action was discriminatory

because the agency failed to accommodate him. Specifically, he claimed

that he could still work as a Police Officer if he was assigned an

outdoor post only, or if he was permitted to use a respirator when he

went into the production area. Complainant also claimed that the agency

found a Security Guard position for another Police Officer who had a

similar sensitivity to chemicals in the production area, and that younger

employees with no prior history of EEO activity were also accommodated

with other positions.

With regard to issue (2), the record reflects that on May 3, 1995,

the agency's Safety Manager sent a letter to the Acting Director of

the Police and Security Branch in which he listed six individuals who

would not be permitted to enter the facility due to medical reasons.

Review of the letter reveals that complainant was on this list, and he

claimed that the letter was tantamount to reprisal discrimination for

the filing of the previous complaint.

Evidence on both issues was presented at a hearing before an EEOC

Administrative Judge (AJ).<4> At the conclusion of the hearing, the AJ

issued a recommended decision finding no discrimination. Specifically,

with regard to issue (1), she found that complainant was not a person

with a disability, because he failed to show that his diagnosed conditions

substantially limited a major life activity. The AJ based this decision

on the evidence that complainant was not precluded from working as a

Police Officer generally, inasmuch as he was working as a Police Officer

at another job at the time of the hearing, and he was only prevented from

working in the production area, where he would be exposed to chemicals.

She further found that complainant failed to show that he was able

to perform the essential duties of a Police Officer, with or without

accommodation. In this regard, she determined that it was not possible

to station complainant outside only, since the Police Officers were

required to protect the people and product of the facility, most of which

were located in the production area. The AJ determined that the agency

presented sufficient evidence establishing that allowing complainant to

wear a respirator when he entered the production area, would interfere

with his Police Officer duties. In this regard, she credited the

testimony of agency officials who stated that in an emergency, there

would be no time for complainant to dress in the protective gear, and

moreover, it would not fit over the gear that was part of the Police

Officer's uniform. Although the agency looked for positions for which

complainant qualified, no positions could be found that met his medical

restrictions, according to the AJ.

The AJ did find that complainant set forth a prima facie case of age

discrimination with respect to his placement on LWOP, given that he

pointed to a younger employee who was not placed on LWOP, but was

accommodated with a position as a Security Guard. While acknowledging

that this individual occupied a unique position, the AJ found that there

was only one such position at the agency, and that it was occupied

by this individual, who had a similar sensitivity to chemicals.

The AJ found that this individual was provided the position prior to

complainant's illness, and therefore, there was a legitimate reason for

the agency's refusal to place complainant in the position. Finally,

the AJ concluded that complainant failed to establish a prima facie

case of reprisal discrimination, because the individual who made the

decision that complainant could not be accommodated testified that he

was not aware of complainant's prior EEO activity.<5>

With regard to the issue of restricting complainant's access to the

facility, issue (2), the AJ found that complainant established a prima

facie case of discrimination because others were not denied access to

the facility. She found, however, that the agency set forth a legitimate

reason for restricting complainant's access, through the testimony of

the Safety Inspector. Specifically, the Safety Inspector stated that

he wrote the memo limiting the access because it would not be safe

to allow persons with chemical sensitivities onto the premises where

they would be exposed to chemicals. He further stated that he put the

information in an Operations Bulletin, which he stated is the method he

used to communicate with his officers. The AJ concluded that there was

no evidence that this memo was used to discriminate against complainant,

and therefore, there was no pretext for discrimination.

In a final agency decision, the agency adopted the findings and

conclusions of the AJ. On appeal, however, complainant disputes the

finding of no discrimination. He claims that he was not accommodated

by the agency because of his disability, his age, and in retaliation for

his prior EEO activity. First, complainant maintains that the AJ and the

agency erroneously concluded that he was not a person with a disability,

because he was not precluded from working as a Police Officer generally.

He claims that this test is too broad, and that he is disabled based

upon his "reduced ability" to work within the facility. He cites two

Commission decisions which he asserts stand for the proposition that

individuals who are restricted from a single job within the agency are

considered by the Commission to be persons with disabilities. At the

very least, complainant states that the agency stipulated to the fact

that complainant suffers from a disability, and termed complainant's

condition a "disability" in its pleadings. Furthermore, complainant

maintains that the agency perceived him to be a person with a disability,

and that as such, he is entitled to be accommodated by the agency.

Complainant contends on appeal that the agency did not demonstrate that

it could not have accommodated him. He states that the burden is on

the agency to show that he is not qualified because he would be a direct

threat, and that the risk of future injury is supported by a reasonable

probability of substantial harm. Although the agency presented testimony

from a contract physician attesting to the fact that complainant is

unable to be a Police Officer at the facility, he avers that her opinion

is of limited value because she failed to perform an employability status

report on him. Finally, he claims that he has established a prima facie

case of age and reprisal discrimination, because a coworker (age 33, no

prior EEO activity) testified that she has a chemical sensitivity and was

accommodated with a different position. Complainant argues that there

is no evidence in the record to rebut the assertion that he was treated

different from this employee because of his age and prior EEO activity.

ANALYSIS AND FINDINGS

The threshold question in a case of disability discrimination is

whether the individual is a person with a disability as set forth at

29 C.F.R. �1630.2(g).<6> From the evidence presented in this case,

however, the Commission is unable to make this determination. We note

that with the consent of the AJ, the parties stipulated at the hearing

that the complainant was within the protection of the Rehabilitation

Act. Nonetheless, despite this purported stipulation, the AJ found that

complainant was not a person with a disability.

The confusion surrounding this issue is further enhanced by the lack

of individual medical evidence specifically describing complainant's

condition. Most of the medical evidence described the condition

of chemical sensitivity generally, and not complainant's specific

sensitivity. The Commission is unable to discern whether or not this lack

of evidence resulted from complainant's being misled by the stipulation,

or whether such evidence is simply unavailable. Accordingly, more

evidence on complainant's condition is needed.

In addition, the Commission finds that this case is not in posture for

a second reason. As noted, both parties focused their arguments and

evidence on the issue of accommodation, and in the agency's case, the

inability to accommodate complainant at the facility due to its currency

production goal. As part of this argument, the agency contended that

it was unable to reassign complainant because all positions within the

facility would risk exposure to the chemicals involved with currency

production. Nonetheless, the record is devoid of evidence establishing

what, if any, effort to reassign complainant to another facility,

was made. In this regard, we note that there is no evidence that the

agency obtained a list of vacancies at other facilities, and after an

individualized assessment of complainant's qualifications, determined

whether or not complainant was qualified for employment at another

facility.<7> The Commission notes that while federal law does not require

that an agency create a new position for a disabled individual or "bump"

another employee from a job in order to create a new position, the agency

must consider reassignment to a vacant position that the individual is

qualified to perform. See Enforcement Guidance on Reasonable Accommodation

and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice

No. 915.002 (March 1, 1999), pp. 37-40. Given this lack of evidence, the

Commission finds that the matter must be remanded for further development

of the evidence, as outlined in the order below.<8>

CONCLUSION

Accordingly, it is the decision of the Equal Employment Opportunity

Commission to REMAND the matter to the agency for further development

of the record as outlined in the order below.

ORDER

The agency is ORDERED to supplement the record with the following:

(1) The agency shall request from complainant detailed medical evidence

which specifically describes complainant's condition, including the long

term impact, or expected impact of the exposure to chemicals, if any.

In this regard, the medical evidence shall include a description of

complainant's condition at the time of the exposure, as well as his

current physical condition. Effects that the condition has on major

life activities other than working, e.g., breathing, should be noted,

if applicable. In addition, the physician should opine about the duration

of the effects, and comment on the severity of the condition.

(2) The agency shall, after conducting an individualized assessment

ascertaining complainant's physical limitations vis a vis the position of

Police Officer and other comparable positions, consider if it could have

reassigned complainant to another facility. See 29 C.F.R. �1630.2 (o),

(p), and �1630.9. In this regard, the agency shall determine whether

any vacancies existed at other facilities, and then determine whether

complainant met the prerequisites for these positions. Second, the

agency shall identify the essential functions of these positions, and

consider whether or not complainant could perform these functions with or

without accommodations. If such accommodations would have resulted in

an undue hardship, the agency shall specifically identify the hardship.

Moreover, if no such position was available, the agency shall provide

detailed reasons for the unavailability.

(3) After gathering the evidence ordered in this matter, the agency shall

forward the evidence to the Commission for decision. Complainant shall

cooperate and assist the agency in its effort to obtain the evidence.

All evidence shall be obtained and forwarded to the Commission within

ninety (90) days from the receipt of this decision of the Commission.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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:

April 3, 2000

__________________ _______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The Commission notes that there is conflicting evidence in the record

as to whether or not the allegation of discrimination in issue (2)

is based solely upon retaliation. The Commission believes that the

confusion stems from two other allegations of discrimination which were

based upon race, as well as retaliation, and processed with issue (2).

These two allegations involved allegedly discriminatory comments made

about complainant. The AJ found that complainant was not aggrieved with

regard to these two allegations, and dismissed them at the hearing stage.

Complainant did not appeal the dismissal of these two allegations to

this Commission.

3The Commission notes that complainant was also diagnosed with erythema,

hypertension, and Wolff-Parkinson-White syndrome. However, his claim

of disability discrimination relates to his chemical exposure only.

The other conditions are not explained in the record, nor does complainant

make any argument that he was discriminated against on the basis of

these conditions.

4The Commission notes that complainant's complaints were consolidated

at the hearing stage with those of two other agency employees with

similar claims.

5The record reflects that complainant contacted an EEO Counselor in 1993

when he was denied a promotion.

6The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

7In meeting the obligation to consider reassigning a disabled employee,

the Commission notes that the agency has an obligation to make an

individualized assessment of the employee. See 29 C.F.R. �1630.2(o)(3).

8Given our finding that the case is not in posture for decision on the

issue of disability discrimination, the Commission will stay a decision

on the claims of reprisal and age discrimination. Upon receipt of

the evidence requested in the order, the Commission will rule upon

complainant's claims of age discrimination and retaliation, as well as

disability discrimination.