07a30113
03-03-2005
Stephen W. Millsap, Complainant, v. Admiral James Loy, Acting Secretary, Department of Homeland Security, Agency.
Stephen W. Millsap v. Department of Homeland Security
07A30113
March 3, 2005
.
Stephen W. Millsap,
Complainant,
v.
Admiral James Loy,
Acting Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07A30113
Agency No. 03-0163
Hearing No. 270-A0-9260X
DECISION
Following its June 12, 2003 and August 4, 2003 final orders, the agency
filed timely appeals which the Equal Employment Opportunity Commission
(EEOC or Commission) accepts under 29 C.F.R. � 1614.405. On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) decision that it discriminated against the
complainant based on his disability (cervical radiculopathy and thoracic
outlet syndrome) when he was not reasonably accommodated, resulting in his
removal, and its rejection of the AJ's order for remedies.<1> The agency
also requests that the Commission affirm its rejection of a supplemental
decision by a second AJ awarding specified attorney fees and costs.<2>
The complainant appealed the agency's first final order and responded to
the agency's appeal of the supplemental AJ decision. For the following
reasons, the Commission affirms the agency's final orders.
The complainant, who was formerly employed with the agency as an
Immigration Record Technician, GS-5, with its immigration function at the
New Orleans District Office, Oakdale Suboffice, filed an EEO complaint
with the above disability claim. Following an agency EEO investigation
and an EEOC hearing, the AJ found discrimination.<3>
The AJ found that the complainant had a disability or was perceived
as having one. As a result of his medical conditions arising from
an on-the-job injury, by August 1998, the complainant was limited to
lifting 5 to 10 pounds and no lifting over his head with his left arm.
Around this time, he also had to take breaks, as needed. In March 1999,
the complainant was limited, with regard to his left arm, to no reaching
beyond two hours, no reaching above the shoulder for more than an hour,
no pushing/pulling more than two hours and none over five pounds, and no
lifting over ten pounds. In June 1999, he had similar restrictions, plus
no working above shoulder level and no repetitive turning of his head.
He was permitted to push/pull 10 pounds, with no specified time limit.
It was not specified whether the restrictions, as applicable, only
applied to the left arm. On July 23, 1999, restrictions were added
of eye level work only, no repetitive twisting, turning, and bending of
the head, and frequent rest periods from prolonged sitting, and on July
29, 1999, restrictions were specified with the right arm/shoulder of no
repetitive movement and no lifting over ten pounds. The complainant was
taken off work by his physician on August 6, 1999, and never returned.
In October 1999, the physician agreed with the complainant's application
for social security disability retirement, and it was subsequently
granted.<4> In a November 1999 letter to the complainant's second
level supervisor, the physician wrote that the complainant was unable to
repetitively lift objects, repetitively rotate his head left or right,
unable to work at or above shoulder level, and was impaired from the
workforce and this is expected to be of long standing duration.
As a threshold matter, one bringing a claim of discrimination on the
basis of disability must show that he is an individual with a disability
within the meaning of the Rehabilitation Act. 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 an impairment or (3) is regarded as having such an impairment. 29
C.F.R. � 1630.2(g). Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). The complainant's 10 pound
lifting restriction is a physical impairment that substantially limits the
major life activity of lifting. Selix v. United States Postal Service,
EEOC Appeal No. 01970153 (March 16, 2000).
An agency must provide reasonable accommodation to the known physical or
mental limitations of qualified applicants or employees with disabilities
unless it can demonstrate that the accommodation would impose an undue
hardship on the operations of its program. 29 C.F.R. � 1630.9(a) & (b).
Reasonable accommodation may include job restructuring, and acquisition or
modifications of equipment or devices, among other things. 29 C.F.R. �
1630.2(o)(2). It also can include, as a last resort, reassignment to
a vacant position. 29 C.F.R. � 1614.203(g).<5>
A qualified individual with a disability means an individual with a
disability who satisfies the requisite skill, experience, education
and other job related requirements for the position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
When determining whether an employee with a disability is "qualified,"
this is not limited to the job he holds, but also positions the employee
could have held as a result of reassignment. Ignacio v. United States
Postal Service, EEOC Petition No. 03840005 (September 4, 1984), aff'd,
30 M.S.P.R. 471 (Spec. Pan. February 27, 1986).
The complainant's job had three components: mail clerk, records room
clerk, and switchboard operator (receptionist type duties). They were
shared by three immigration records technicians on a rotating basis.
The mail clerk duties included picking up mail at the post office,
about a daily one hour task, opening and sorting mail, and delivering
it throughout the facility. The hand truck for pushing/pulling mail
weighed 15 pounds, and containers of mail weighed 10 to 50 pounds
each. Pushing/pulling the hand truck was done about four hours a
day intermittently. Opening mail required repetitive arm motions,
and sorting was done in overhead bins, which took about four hours on
peak days. The record room clerk duties included bar coding, retrieving,
returning, and delivering files. The room was crowded, and files were
kept on railed shelves that were movable to save space. Some were over
shoulder level, and some down low. Files weighed from less than a pound
to more than 50 pounds, and bar coding, which was performed constantly,
almost 6 to 8 hours a shift, required handling the files. The mail and
records room clerk duties frequently involved lifting weight of 20 to
50 pounds. These duties also included data entry. The receptionist
function was typically performed, on a rotating bases, once a week.
The record suggests this was a smaller function because employees on
restricted duty were also given some time in this function.
The complainant, through a former attorney, conceded that by April 1999,
he was unable to perform the mail and records clerk part of his job, and
these functions were not amenable to reasonable accommodation. This is
supported by the record. The crowded records room had files above
shoulder level, outside the complainant's overhead work restriction,
and shelves down low, which he complained made him reach, and mail
and records work involved frequent lifting above the complainant's
weight restrictions. Pushing the empty mail cart alone was beyond the
complainant's restrictions. The complainant testified that lowering
overhead bins for sorting mail was not feasible. These were essential
functions of the complainant's job.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ determined that the complainant was a qualified individual
with a disability in connection with the position he held because
there were "some indications" that if he received medical treatment
and accommodation, he "might" have been able to perform the essential
functions of his job. While mitigating measures an individual takes,
such as medicine, must be considered in determining whether a person
has a disability, the employee is not required to get medical treatment,
and the agency does not have to provide it. EEOC's Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, at Question 37;<6> EEOC ADA Technical Assistance
Manual Addendum (October 2002) (available at www.eeoc.gov). The record
had references that if the complainant received surgery, his condition
may be alleviated. This can not be considered in making the qualification
determination. Further, the overwhelming evidence showed the complainant
was unable to perform two out of the three major components of his job,
even with reasonable accommodation.
We note, in any event, that after being out of work for a few months, the
complainant returned on or about April 13, 1999, to modified job duties.
The AJ found that the agency violated the complainant's restrictions
by placing him in the mail room. While there is substantial evidence
to support this finding, the record reflects that when the complainant
complained he could not do mail room work, the mail function was quickly
removed from him. Specifically, an Office of Workers' Compensation
Programs (OWCP) nurse did an on-site evaluation of the Immigration Record
Technician job in April 1999, and suggested some adjustments to the
mail room function. The complainant wrote a letter to his supervisor
on April 27, 1999 that he was assigned to the mail room that morning
with the instruction to inform her if he was exceeding his medical
limitations with many tasks. The letter suggests he was assigned there
part of the day, and did receptionist duties the remainder of the day.
The agency's intention was to have someone else assist the complainant,
but this failed and his restrictions were violated. Agency management
testified that the complainant was told if it hurt to lift don't do it,
and don't go beyond your restrictions.
Similarly, the complainant wrote that he was assigned to the records
room for half days for a week in early May 1999 to determine what
accommodations were needed there. He performed reception duties the rest
of the day. On May 11, 1999, the complainant informed his supervisor
that he was working beyond his restrictions, and asked that he work
in the records room two hours a day, with the rest of the day at the
reception desk. This request was granted. When the complainant
presented his additional medical restrictions of July 23, 1999, he was
removed from records room function the same day.
As noted above, when determining whether an employee with a disability
is "qualified," this is not limited to the job he holds, but also to
positions the employee could have held as a result of reassignment.
The AJ recounted with approval that the complainant testified that there
were some positions which he could have performed with accommodation,
including simple revisions to the receptionist position, a position he
was offered, that will be discussed below. Outside the receptionist
position, however, a close reading of the transcript reveals the opposite
to be true. The complainant testified that his supervisor offered him
the job of deportation clerk, but he replied he did not think he could
do it because it involved working with files and continually looking
down at his desk while working the file. He added the job also required
being busy all the time with the computer. The complainant added that
his supervisor offered him the job of investigative clerk, but he knew
he could not do clerk duties. Other than the receptionist position,
the complainant did not testify about any jobs he could do with or
without reasonable accommodation.
Since whether the complainant was qualified to perform as a receptionist
is an issue, facts regarding this function of the Immigration Record
Clerk job, from which the receptionist position arose, will be discussed.
The complainant's supervisors stated that most callers already knew
the extensions of individuals they were trying to reach and would punch
them in by themselves, hence bypassing or not needing monitoring by the
receptionist. Still, management conceded that at times, many calls would
ring at the telephone of the receptionist. The complainant testified
that there were eight telephone lines and all the calls required much
attention.
The complainant testified that some months after his injury, when he was
temporarily assigned exclusively to the receptionist desk, his supervisor
gave him some inventory paperwork, saying he had nothing else to do.
The complainant testified that bending down his neck to do it caused
much pain, and when he complained, the supervisor released him from it.
Management indicated that the complainant was not assigned further
paperwork at the reception desk.
The complainant's supervisor indicated that the complainant needed
frequent breaks of different durations at unpredictable times, which
was disruptive because this made it difficult to arrange coverage for
the receptionist function.
In April 1999, the OWCP nurse made suggested adjustments to the
complainant's receptionist function. The nurse observed the complainant
using his left hand to answer the telephone, cradling the receiver
between his left shoulder and neck, and switching telephone lines with
his right hand. She suggested the purchase of a specified headset
that replaces the telephone receiver, to be worn at all times at the
receptionist desk. The nurse wrote this would allow the complainant
to hold his left shoulder and neck in a neutral position and eliminate
the need for him to use his left arm at all, since the headset would
allow the complainant to use his right hand and arm to both answer
and transfer calls. She also wrote that it would allow him to perform
paperwork between calls. The agency previously purchased a headset for
the complainant, which the nurse assessed. She wrote that it plugged
into a radio-type rover unit that the complainant wore on his belt,
lifted the telephone, allowing him to remotely answer the telephone.
However, the nurse wrote that the headset did not work with a multiline
telephone, since it answered too slowly and only one line at a time.
The nurse also suggested the purchase of a rack to hold three sign-in
clipboards at the receptionist desk, eliminating the occasional use of the
left arm to retrieve the clipboards from under cabinets and in drawers.
The agency purchased a rack for the complainant's desktop because,
according to his supervisor, the complainant was unable to lean down
to retrieve forms. The agency declined to purchase a second headset.
The complainant's first level supervisor explained the first headset
was adequate. She noted the complainant could use the telephone hands
free option, meaning speaker phone, and she told him to take his time
answering calls. She said if calls were missed, callers would call back.
An assistant who worked with the supervisor, who later succeeded her,
explained the old headset worked, albeit answered lines slower, and the
complainant was told to answer the calls as they came in, and not to worry
how long it took. In response to a question about why a new headset
was not purchased, the complainant's second level supervisor testified
that while she could not recall specifics, it was her guess that it
was unnecessary because it had been determined missing a call during a
busy period was not a big problem since the caller could call back, she
believed there was voice mail, and the complainant stated he could not
do paperwork at the reception desk, eliminating a stated advantage of a
new headset. In fact, a memorandum of a conference in April 1999 between
OWCP officials, including the nurse, the complainant, and agency managers,
reflects that the complainant conceded that missed calls went into voice
mail, and it was not imperative that all calls be answered immediately.
At the meeting, the OWCP claims examiner advised the complainant not to
violate his restrictions in an effort to catch all calls.
On May 11, 1999, the complainant wrote his supervisor that the suggested
accommodation at the reception desk of using the hands free option seemed
to be working well.
After the agency received the complainant's restrictions of July 23,
1999 of eye level work only and no repetitive twisting, turning, and
bending of the head, on July 26, 1999, the next workday, his supervisor
provided two stands with the goal of making the telephone eye level.
The next day, according to the complainant, he informed his supervisor
that the stands did not work well when there were multiple calls.
Meanwhile, as a result of the new medical documentation, agency management
concluded that the complainant could not perform the duties of his
Immigration Record Technician job. Hence, it created the full-time
position of Receptionist, and by letter dated July 29, 1999 to the
complainant's physician, stated it was prepared to offer the complainant
the position. The letter stated the complainant was being aided by the
headset, speaker phone, and trays which made the telephone eye level,
asked if he could do the job 40 hours a week, and if not, how many.
A position description was attached indicating the job consisted of
receiving and transferring incoming calls, providing information to very
general or basic inquiries, greeting visitors to the office and directing
them to the appropriate person or unit, and other duties, as assigned.
According to the complainant, the duties included giving callers
information on the status of their cases using data from a computer.
The job had not yet been classified by the agency to determine its
grade level, and the complainant has expressed concern that it might
ultimately be rated at the GS-4 level. Through his former attorney,
the complainant later wrote that the receptionist job was not within his
work restrictions, and was contrived and hastily approved to eliminate
his entitlement to OWCP wage loss compensation.
The July 29, 1999 letter and receptionist position description were
given to the complainant that day to bring to his physician, and the
physician replied by releasing the complainant to the job half days,
with rest every one to two hours, as needed. OWCP agreed to provide
wage loss compensation for the remainder of the day. The next day,
the complainant wrote a letter to his second level supervisor stating
that contrary to the July 29, 1999 letter, he did not believe that the
telephone was placed at eye level, and the job had repetitive turning,
twisting and bending of the head.
On or about August 4, 1999, the complainant obtained letters from two
co-workers about the receptionist function who at times performed it
because they were on restricted duty. Both indicated the telephone was
not at eye level, one noting this was the case even with the stands. One
wrote that when callers request a telephone extension, the receptionist
must twist the head and neck to look over the telephone to obtain the
extension or find the name on the speed dial area. He added there is a
daily roster of inmates which must be referred to many times a day to
assist callers. He stated that many employees request thrift savings
program (TSP) forms located in the bottom drawer of the receptionist
desk, and reaching for them requires moving and twisting. The other
wrote the job requires a great deal of twisting, turning, and bending
of the head, neck and back. The complainant also mentioned the inmate
list and said the drawers were full of things people needed, indicating
this caused problems with his neck. On August 4, 1999, the complainant
wrote a memo for his file that he was directed to try the headset the
day before, but because the telephone was on stands, the apparatus was
unable to reach handset to lift it, and he showed his supervisor this.
On August 6, 1999, the complainant wrote another memo to his file that
his supervisor stated the eye-level problem could be solved by raising
and lowering the receptionist chair, but the complainant countered the
telephone was not at eye level like a computer screen. The complainant
wrote that he told his supervisor that he was restricted from repetitive
twisting, turning, and bending of the head.
On August 6, 1999, the complainant left work to go to his doctor.
The doctor took the complainant off work, and he never returned. As the
receptionist position was created for the complainant, it was not filled
because he did not accept the job.
A co-worker stated the complainant told him he had pain sometimes,
even when picking up the telephone, and he thought he had a hard time
picking up the telephone. The successor supervisor testified that after
she raised the telephone, the complainant complained it was still not
eye level because he had to lean over to read the little screen on
the telephone to transfer calls. She stated when she suggested the
complainant raise his chair, and he responded there could be a future
claim on his knees. The supervisor claimed that the head set worked.
She stated the complainant had issues with leaning over to answer the
telephone, picking up the receiver, and pressing the buttons.
The complainant countered that the telephone was low and adjusting his
chair would not solve the problem. He reiterated many of the points
made above, including that the apparatus used to lift the receiver
did not work because it was separated by the stands. He testified
that if adjustments were made, he could have avoided twisting, turning
and bending of his head and neck, and performed the receptionist job.
He testified that looking down at the computer screen was a problem.
The complainant testified that these problems could have been avoided by
raising his desk to eye level, which would raise up his computer screen
and telephone, and having a new headset.
As an initial matter, an agency is not required to create and fund a job
as a form of reasonable accommodation. Castenda v. United States Postal
Service, EEOC Appeal No. 01951445 (September 18, 1998). However, once
it did so, the complainant was entitled to be reassigned to the position,
if he was qualified. 29 C.F.R. � 1614.203(g).
We find the complainant was not qualified for the position, with
or without reasonable accommodation. Even with a new headset, the
complainant would still have to use an arm to answer and transfer calls.
The complainant testified that the number of calls coming in kept him
very busy. The complainant was restricted from repetitive motion with
his right arm, activity required for answering and transferring calls with
the right hand with the new headset, and at least transferring calls with
the old headset. Use of the left hand was very restricted, to the point
that it was the goal of the OWCP nurse to avoid any use of the left arm,
and lifting a telephone receiver caused pain. Further, if the telephone
was at the requested eye level, transferring calls at the telephone would
require working with an arm above shoulder level, which the complainant
was restricted from doing with the left arm, and possibly the right.
Hence, the record shows transferring calls with the left hand was not
an option. The complainant's successor supervisor testified that the
complainant raised pressing the buttons on the telephone as an issue.
The complainant claimed that he could have performed the job of
receptionist with the simple accommodations of raising his desk to eye
level and having a new headset. In addition to the above reasons,
the record shows this to be highly improbable. The complainant was
restricted to eye level work only, and no repetitive twisting, turning,
and bending of the head. Such repetitive motions were inherent in
the receptionist job. Looking at the screen on the telephone required
repetitively craning the neck somewhat, and the complainant complained
about this. Looking at the speed dial buttons on the telephone required
turning of the neck. Reaching for papers requested by people required
repetitively bending the neck. If the desk were raised to eye level,
the telephone and computer screen would be above eye level. If the
complainant then raised his chair, reading any papers on his desk,
such as the daily inmate roster used to answer callers questions would
require repetitively bending the head down.
As previously stated, other than the receptionist position, which we
find the complainant was not qualified for, he does not point to any
positions at the agency that he could perform the essential functions
of with or without reasonable accommodation, and the record does not
show there were any.
As the complainant is not a qualified individual with a disability, the
agency's decision finding no discrimination is affirmed, as well as its
decision not awarding compensatory damages and attorney fees and costs.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
___March 3, 2005_______________
Date
1The AJ defined the claim basis as disability. In its final order, the
agency stated reprisal for EEO activity was also a basis. On appeal,
however, the complainant, who is represented by counsel, states the
claim was based in disability, and makes no mention of reprisal.
For this reason, we will not address the basis of reprisal.
2The complainant argues that the agency did not timely appeal this
decision, which is dated June 19, 2003. The complainant calculates the
40 day time limit to appeal as starting on June 19, 2003, and contends
the appeal was filed on August 7, 2003, beyond the time limit. The
agency, however, did not receive the decision until June 23, 2003,
and its appeal was dated and postmarked August 4, 2003, a Monday.
Accordingly, the appeal is timely. 29 C.F.R. � 1614.402(a) & .604.
3The AJ found that the complainant was a Deportation Clerk. However,
during all relevant times, i.e., before and after the complainant had
medical restrictions, he was actually an Immigration Record Technician.
4In January 2000, the agency proposed the complainant's removal for
inability to perform, but the complainant, under protest, subsequently
retired. He argued the exacerbation of his physical condition and
resulting inability to work was caused by the agency's failure to
accommodate.
5Because this case arose prior to June 20, 2002, 29 C.F.R. � 1614.203(g),
the Commission's prior regulation on reassignment, applies. It limited
the obligation of reassignment in federal sector employment, and has been
superseded. 29 C.F.R. � 1614.203(b). The Americans with Disabilities
Act (ADA) standards apply to all conduct on or after June 20, 2002,
and emphasize, among other things, a broader search for a vacancy.
The ADA regulation regarding reassignment can be found at 29 C.F.R. �
1630.2(o)(2). Both of the above regulations limit the reassignment
obligation to vacant positions. Additional information can be found
in the Appendix to the ADA regulations and in the EEOC's Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (October 17, 2002) in the reassignment
section (available at www.eeoc.gov).
6Reasonable accommodation, however, includes granting leave so an employee
can obtain treatment. Id.