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.