01990004
08-06-2002
Terry L. Greathouse, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Terry L. Greathouse v. Department of the Army
01990004
August 6, 2002
.
Terry L. Greathouse,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01990004
Agency No. AEGJF096120190
Hearing No. 240-97-5205X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant had been a Lock and Dam Operator,
GS-9, at the agency's Cannelton Lock and Dam facility. He filed a
formal EEO complaint on March 11, 1997, alleging that the agency had
discriminated against him on the basis of disability (clinical depression)
when, effective January 5, 1997, he was reassigned from the Cannelton
facility to the McAlpine Lock and Dam facility.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination based on disability. Specifically, the AJ determined
that complainant failed to establish that he is an individual with a
disability covered under the Rehabilitation Act. The agency's final
order implemented the AJ's decision.
On appeal, complainant provides evidence already provided in the record.
In response, the agency requests that we affirm its final order.
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). After a careful review of the record,
the Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
he is an "individual with a disability." We shall assume, arguendo,
that complainant established that he is a qualified individual with
a disability.
Complainant alleged that the agency failed to provide him with a
reasonable accommodation, and instead, reassigned him to the McAlpine
Lock and Dam. The record indicates that complainant and a co-worker
(Co-worker) had several conflicts which escalated. The agency's Crisis
Intervention Team investigated the situation and determined that both
individuals were at fault for the confrontations. Based on the findings,
the Lockmaster issued a memorandum on October 18, 1995, indicating that,
for at least eight weeks, complainant and the Co-worker would not be
scheduled to work together on a shift. The Lockmaster also stated that
the time was provided so that the individuals could correct the situation.
He noted that the personal conflict between complainant and the Co-worker
should not interfere in their ability to work together in a professional
manner. The memorandum warned that failure to be able to work with one
another may result in a removal action.
Following the confrontations, complainant and the Co-worker sought
counseling. Complainant was diagnosed with clinical depression.<1>
The Lockmaster indicated that the Co-worker expressed his willingness to
work with complainant as early as January 16, 1996. On April 15, 1996,
the Lockmaster issued a memorandum to complainant indicating that he
and the Co-worker would be scheduled to work together on April 30, 1996.
If complainant had a problem with the schedule, the Lockmaster requested
that complainant contact him by written statement with reasons why he
cannot work with the Co-worker. The Lockmaster noted that if a resolution
to the situation was not reached, he may be forced to remove him.
Complainant responded to the Lockmaster's memorandum and reiterated
his concerns about working with the Co-worker. He stated that the
Co-worker's behavior has put him in constant turmoil and that he feared
for his safety. He also stated that his counselor recommended that he not
work with the Co-worker and cited his out-patient psychiatric evaluation
dated November 7, 1995, which recommended that complainant should withdraw
from physical contact with the Co-worker. The evaluation also notes
that complainant should not be expected to work with the Co-worker and
either he or the Co-worker (or both) should be transferred to another
work location.
Based on complainant's response to his memorandum, the Lockmaster
recommended that complainant be removed. The Assistant Project
Manager reviewed the situation and determined that a reassignment to
a different facility would be a better solution. On May 2, 1996, he
offered complainant a vacant GS-8 Lock and Dam Operator position with
retained pay at the Markland Lock and Dam. Complainant rejected the
reassignment on May 5, 1996.
The Lockmaster found that the temporary shift arrangement could not be
continued. At the hearing, he testified that setting up the schedule so
that complainant and the Co-worker would not work on the same shift was
difficult on the other employees. The other employees had their shifts
changed and could not get into a regular schedule because of the balancing
that had to be done. The Lockmaster also had to make sure complainant
and the Co-worker were not scheduled in addition to making sure there
was coverage before leave could be granted for other employees. Further,
the other employees were escorts for complainant and the Co-worker which
they considered to be a problem for the work environment.
In August 1996, the Lockmaster informed complainant that both he and the
Co-worker were scheduled to work on September 16, 1996. Complainant again
refused to work with the Co-worker. Complainant provided a letter from
the Clinical Psychologist which recommended that complainant not be placed
in the same work environment as the Co-worker. Based on complainant's
refusal to work with the Co-worker, the Project Manager recommended
complainant's removal.
On December 10, 1996, the Chief issued a decision on the proposed removal.
He determined that the agency tried to resolve the situation by providing
adjustments to his work schedule, however, this could not be continued.
Since complainant still remained unable to work with the Co-worker, the
Chief decided that reassignment would be the only solution. The Chief
reassigned complainant to the position of Lock and Dam Operator, GS-9,
at the McAlpine Lock and Dam facility effective January 5, 1997.
Upon review of the record, the Commission finds that the agency took
the appropriate steps to find an effective reasonable accommodation
for complainant. When it became apparent that there was no reasonable
accommodation that would allow complainant to work at the same facility
as the Co-worker, reassignment was the agency's only option. Further,
the psychiatrist evaluation recommended that either the Co-worker or
complainant be reassigned to another facility. Therefore, the Commission
finds that reassignment was an appropriate accommodation.
Disparate Treatment
Complainant also claimed that the agency subjected him to disparate
treatment based on his alleged disability when he was reassigned.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
As noted above, we shall assume arguendo that complainant established
that he is a qualified individual with a disability. We also note that
complainant has satisfied elements (3) and (4) above. Upon review of
the record, the Commission finds that the agency articulated legitimate,
nondiscriminatory reason for its action. The Chief testified that
complainant stated that he could not work with the Co-worker. He also
noted that the agency could not continue to schedule the Co-worker and
complainant at different shifts. Since complainant had been unable to
resolve the situation, the Chief concluded that reassigning complainant
was a better solution over removal. Therefore, the Chief decided to
reassign complainant to the McAlpine facility.
Once the agency has articulated legitimate, nondiscriminatory reasons
for its action, the burden shifts to complainant to demonstrate that the
agency's reason was pretext. Complainant argues that the aggressor should
have been reassigned and not him. Upon review, we find that complainant
has not met his burden. Complainant merely argues that the agency's
decision was a poor decision. He has not shown that the decision was
taken based on a discriminatory animus towards his alleged disability.
Upon review, we discern no basis to disturb the AJ's decision finding
no discrimination. Therefore, we affirm the agency's final order.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2002
__________________
Date
1We note that complainant does not indicate that the confrontations
with and aggressive behavior towards the Co-worker were because of his
alleged disability.