EEOC finds in favor of federal employee on grounds of disability discrimination. Complainant filed and Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of age (53) and disability (back injury). Specifically, he alleged discrimination when he was not selected for a temporary Supervisory Air Traffic Control Specialist position, he was told that he was “too old and too crippled” to be selected for the position, and he was denied a reasonable accommodation to be temporarily reassigned to the Toledo Air Traffic Control Tower. Following the initial investigation, Complainant requested the Agency issue a Final Agency Decision (FAD). In its FAD, the Agency found that Complainant being told he was “too old and too crippled” for a position did not amount to direct evidence of discrimination because there was no evidence that this comment or attitude played apart in the decision not to select him for the position. The Agency continued on to say that even if this was direct evidence of discrimination, the Agency was able to establish that it would have made the same decision even if it had not considered the impermissible factors because the Complainant was unqualified because he did not have operational knowledge of Terminal Radar Approach Control (TRACON), a requirement for the temporary position. Regarding the reasonable accommodation, the Agency found that the Complainant failed to show he has a disability that prevents him from meeting the physical requirements of the position, and therefore the Complainant’s request was not one that it was obligated to provide. Complainant appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal, the EEOC’s Office of Federal Operations (OFO) noted that the Agency acknowledged that Complainant was disabled with severe back pain caused by a degenerative disc, and held that the Agency’s concession paired with its failure to include documentation of Complainant’s impairment in the record was sufficient to establish that the Complainant was disabled. The OFO further held that the Complainant was a qualified individual with a disability and entitled to protection under the Rehabilitation Act. The OFO stated that although evidence was presented that the person that made the “too old and too crippled” comment was joking, that individual did have input in to the hiring process, and such statements were direct evidence of age and disability discrimination. Despite this, the Agency was able to show that because Complainant was applying for a temporary position rather than a permanent one, the Agency could not invest the time needed in training an applicant in the TRACON systems and therefore went with a more qualified employee. The OFO did note, however, that the American with Disabilities Act (ADA) allows for declaratory relief if the Complainant demonstrates that a discriminatory consideration motivated the employment action, even though other factors also led to the final decision.

In regards to the reasonable accommodation, the OFO held that the Complainant was disabled and the Agency conceded that the Complainant was qualified and able to perform his duties. However, the Agency argued because the accommodation requested dealt with the Complainant’s commute and not his work duties, they had no duty to provide such accommodation. The OFO disagreed with this argument citing precedent to the contrary and held that even though the Agency had no duty to create a new position for the Complainant, they still had not satisfied its obligations under the Rehabilitation Act; however, because rather than continuing to seek a workable accommodation, the Complainant rather asked for sick leave, the Agency did not violate the Rehabilitation Act by denying a reasonable accommodation.

The OFO affirmed the Agency’s findings of no age discrimination in regard to Complainant’s non-selection and no disability discrimination in regard to his request for a reasonable accommodation, and reversed the Agency’s findings of no disability discrimination in regard to Complainant’s non-selection.

Stanley Kubik v. Department of Transportation, EEOC Appeal No. 01973801 (July 11, 2001)