0120100184
11-21-2012
Michael A. Bulka, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Michael A. Bulka,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120100184
Agency No. NPS-07-0477
DECISION
On October 16, 2009, Complainant filed an appeal from the Agency's September 23, 2009, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Operator at the Agency's Gettysburg National Park facility in Gettysburg, Pennsylvania. On July 10, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (right shoulder injury) and age (50) when management denied his request for a reasonable accommodation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an 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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (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").
Under the Commission's regulations, an agency is required to make reasonable accommodation of 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. � 1630.9. "Reasonable accommodation" is defined in part by our regulations as "'[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. � 1630.2(o)(ii). We assume, without so finding, that Complainant is an individual with a disability pursuant to the Rehabilitation Act. Nonetheless, Complainant has not shown that he is a qualified individual with a disability.
Specifically, the Agency has presented evidence to show that Complainant was unable to perform the essential functions of his Tractor Operator position. Specifically, the Agency states that the essential functions of his position involve shoveling stones, operating "macadam pounders." repairing roads and grounds, carrying a backpack leaf blower, shoveling snow, and cutting trees. In his affidavit testimony, Complainant acknowledges that he could not fully perform these functions as a result of his medical restrictions which include no lifting or carrying more than 50 pounds, and up to 50 pounds only on an intermittent basis, and no reaching above shoulder height. Therefore, we find that Complainant has not established that he could perform the essential functions of his position. See Graham-Triplett v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006), req. for recon. den'd, EEOC request No. 05A60859 (Sep. 19, 2006). Further, although Complainant contends that the Agency could have accommodated him in his Tractor Operator position by assigning another employee to perform the physical duties of his position that violated his medical restrictions, we find that the duties at issue are essential function of the position and an agency is not required to remove any of the essential functions of a position as a reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, Notice No. 915.002 (rev. Oct. 17, 2002).
Next, when an individual with a disability cannot be accommodated in his or her current position, as is the case here, an agency is required to consider the availability of a reassignment as an accommodation. See Guidance; see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. Part 1630, at � 1630.2(o). Here, the record shows that upon determining that Complainant could not be reasonably accommodated in his current position, the Agency attempted to identify a vacant, funded position into which Complainant could be reassigned that was commensurate with his medical restrictions. However, the record shows that no positions were available for which he was qualified and into which he could have been reassigned, and Complainant rejected the Agency's offer to extend the search outside of his commuting area. Accordingly, we find that Complainant has not shown that the Agency violated the Rehabilitation Act.
Finally, we find that assuming, arguendo, Complainant established a prima facie case of age discrimination, he failed to show that the Agency's legitimate, nondiscriminatory reasons, as articulated above, were pretextual.
CONCLUSION
We AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
November 21, 2012
__________________
Date
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0120100184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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