Petition for Writ of Certiorari — Benson v. Leavitt
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Supreme Court, U.S.
FILED
04160 6MAY 24 2005
No. 04-
oi OFFICE-OF THE CLERi«
&
IN THE
Supreme Court of the United States
Michael T. Benson,
Petitioner,
V.
Tommy G. Thompson, Secretary
Department of Health and Human Services
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
Michael T. Benson
Pro Se
\ 2703 Waco Court
Baltimore, MD 21209
301-827-2311 office
410-484-7262 residence
QUESTIONS PRESENTED
_ Whether an employment disability discrimination claim
under the Rehabilitation Act of 1973, as amended (the
Act) may be maintained when Petitioner contacted an
EEO Counselor within 45 days of being denied one
reasonable accommodation request, and that contact was
more than 45 days after earlier identical requests were
denied?
_ Alternatively, when death is a foreseeable outcome of
denial of a request for reasonable accommodation under
the Act, should an exception be carved out to eliminate
the 45-day requirement to contact an EEO Counselor?
_ Whether the denial of a cash award bonus to a Federal
employee constitutes an adverse employment action in a
charge of retaliation?
TABLE OF CONTENTS
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TABLE OF AUP RGRIICE RMR. 5 vvisini vn deseosssecabencntes sacece iii
PETITION FOR WRIT OF CERTIORARL 0000000000 000000000000.. l
CRPEINILIING: TRAST. «ic 5c ante eases seneenencauenses l
FUIRESEII EO iiinsis. ch chile cece aoa, tls Pe gee arecmkesens l
RELEVANT STATUTORY AND REGULATORY
PROVISIONS AND RULES. ..............cccccccccssessesessees 2
STATEDMEING. «35415 cinaseeeuepecl een end eee Meee ean daatteesl 2
REASONS FOR GRANTING THE WRIT..................... 8
I(a) The Courts Below Erroneously Held That
Petitioner’s Case Was Time Barred..................... 8
and
I(b) Lessons Learned from Treatiag Petitioner’s
Disability Can Benefit the Public Health.........11
Il. Eliminating the 45-day Requirement to Contact
an EEO Counselor in Disability Discrimination
Cases Would be Beneficial When Death is
Foreamegie. . «3 ic5.054s ene ou emaneaumeenee 12
Ill. The Differences of Opinion in 2 Circuits on
Whether a Cash Award Bonus Reduction to a
Federal Employee Constitutes an Adverse
Employment Condition Needs Resolution........ 13
CONCLUSION... :-.0:s:<2iisccniviscaenincncsdatemtanteasaieceselindins 17
TABLE OF AUTHORITIES
Cases
Lewis v. Board of Trustees of Alabama State,
874 F.Supp. 1299 (1995)............:.cceeeeeeeeee eee eens 10
Munday v. Waste Mgmt. of North America, Inc.,
126 F.3d 239 (4™ Circuit) (1997), ,
cert. denied, 522 U.S. 1116 (1998)...........:.2..-.+-.13
National Railroad Passenger Corp. v. Morgan,
SOG ETD. 101 CBOE) oi. occsensee ccc cseccescesee. 9, 10, 11
Russell v. Principi, Secretary of Veterans Affairs,
257 F.3d 815 (D.C. Circuit) (2001)................ 15, 16
Statutes
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BB UBC. TZAOIED. «oa. vcesccceccnceks ses cdacovcusénossicdgusiwsts 3
Regulations
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29 CER. 1614.203(a)N6)... ..........cscceccccgeecsecesecscecs 16
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FD CBR. 1614. DOS)... ao... cncs..es00005cssccscocesccendedéoneecs 3
Rules
BIRCP. Wal)... <0 i........00..02..ccccceccsseneseeesancsccccssnn cons 15
PICA. 25(9).........000.ccccccccccnccccsencesecensssnnsescoscenses 15
4™ Circuit Court Local Rule 36(c)..............-.ssceeeeeeee ees 16
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American Academy of Family Physicians-
at www.aafp.org/afp/2000040 1/2121 html
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APPENDIX
U.S. Court of Appeals for the 4" Circuit February 23, 2005
Opinion denying Petitioner’s Request for Rehearing and
DOTTIE IID ag 6s. inchs cgasidavaddeestas okie saaltbighicks 1A
U.S. Court of Appeals for the 4" Circuit October 27, 2004
Opinion affirming the judgment of the U.S. District Court
District Court of Maryland April 1, 2004 Memorandum
and Order Denying Plaintiff's Motion to Alter or Amend a
PR aires iin nidbin scans itackrickaceste ds Galil baciuly-etle sts SA
District Court of Maryland March 22, 2004 Memorandum
and Order Granting Defendant’s Motion for Summary
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CAI sv nibs sasliksiis cedbnesethangane shade eben ante 28A
Equal Employment Opportunity Office of Federal
Operations August 7, 2002 Decision Letter.................... 40A
Relevant Statutory and Regulatory Provisions and Rules....45A
iv
:
:
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Michael T. Benson, respectfully petitions
for a writ of certiorari to review the judgment of the United
States Court of Appeals for the Fourth Circuit in this case.
OPINIONS AND ORDERS BELOW |
Reproductions of the following are included in the
appendix to this petition:
February 23, 2005 Order of the United States Court of
Appeals for the Fourth Circuit denying Petitioner’s request for
rehearing and rehearing en banc.
Unpublished October 27, 2004 opinion of the United
States Court of Appeals for the Fourth Circuit affirming the
District Court of Maryland’s decision.
April 1, 2004 Memorandum and Order denying
Petitioner’s Motion to Alter or Amend a Judgment.
Unpublished March 22, 2004 Memorandum opinion
And Judgment Order of the District Court of Maryland
granting summary judgment in favor of Respondent.
JURISDICTION
The judgment of the court of appeals was entered on
October 27, 2004. The court of appeals denied rehearing en
banc on February 23, 2005. This Court has jurisdiction
pursuant to 28 U.S.C. 1254(1).
RELEVANT STATUTORY AND REGULATORY
PROVISIONS AND RULES
The relevant statutory provisions, regulatory
provisions and rules are reproduced in the Appendix at
4S5A-S1A.
STATEMENT
The Equal Employment Opportunity Commission
(EEOC) granted Respondent’s motion for decision without a
hearing on Petitioner’s employment disability discrimination
complaint under the Rehabilitation Act of 1973, as amended
(the Act) in 29 USC 791 ef seg. EEOC’s Office of Federal
Operations affirmed. Petitioner timely filed a trial de novo
complaint in the district court alleging one count (Count I) of
employment disability discrimination, and 2 counts of
retaliation (Counts II and II) for pursuing his claim in the
EEOC. The district court granted Respondent’s Motion for
Summary Judgment on the 3 counts, and denied Petitioner’s
Motion for Reconsideration of Counts I and III only.
Petitioner alleges that Respondent violated the Act as
implemented by 29 CFR 1614.203(b) by employment
disability discrimination and by retaliation pursuant to 29
USC 791(g) as it applies to the Americans with Disabilities
Act of 1990 (ADA) under 42 USC 12203(a).
Disability Discrimination Count I
The provisions of 29 USC 791(b) point out that
special needs of individuals with disabilities are to be met by
Federal agencies. Provisions of 29 USC 791(g) state that
standards in the ADA are used to determine whether the Act
has been violated by employment discrimination. The ADA
at 42 USC 12201(a) cross references the Act.
2
The Act has been implemented by regulations at
29 CFR 1614.203 which provides definitions and
requirements at 1614.203(a), (b), and (c) applicable to this
case. One requirement in 29 CFR 1614.203(b) states in
pertinent part “An agency shall not discriminate against a
qualified individual with physical-----handicaps.” Another
requirement in 29 CFR 1614.203(c) states in pertinent part
“An agency shall make reasonable accommodation to the
known physical-----limitations of an -----employee who is a
qualified individual with handicaps unless the agency can
demonstrate that the accommodation would impose an undue
hardship on the operation of its program.”
Petitioner has been diagnosed with post polio
syndrome (pps) of the respiratory muscles resulting in a
weakened diaphragm muscle which cannot sufficiently
inflate the lungs. Consequently, he is unable to inhale
sufficient air which contains about 20% oxygen. This
disability results in Petitioner’s symptoms of a rapid
heart rate caused by low oxygen levels on slight exertion.
This condition is further exacerbated by a severe scoliosis
from his original polio of the abdominal muscles which
limits expansion of the lungs within his ribcage.
Sitting in a car seat for approximately an hour and 20
minutes on the way to work resulted in his increased heart
rate and caused him to be on the verge of passing out several
times, thus, exacerbating his pps symptoms. Petitioner was
working from home 2 days a week which helped to alleviate
the frequency of those symptoms. Pétitioner assumed his
own risk in driving to work on days he didn’t work at home.
Other of his colleagues also worked at home 2 days a week.
Although Petitioner’s work had not been rated less than
satisfactory, Petitioner was blamed for an error in a response
letter. Respondent’s officials stopped allowing him to work at
home and said he had to submit documentation in support of his |
request for a reasonable accommodation (RA) to work at home
2 days a week. On numerous occasions, Petitioner submitted
documentation to Respondent’s physician, Dr. James
Vorosmarti Jr. including:
(1) Respondent’s fact sheet NIH Publication No.
96-4030 which said that in general, pps is not life
threatening except in cases of severe respiratory
impairment
(2) Letter from Petitioner’s orthopedic surgeon who
recommended the RA and advised that sitting in a
low car seat for a prolonged time hampers the
mechanics of respiration.
(3) Letter from Petitioner’s physiatrist who also
recommended the RA and advised that sitting in a
car seat restricts lung expansion which can worsen
hypoxia, and can cause carbon dioxide retention,
fast heart beat, and distress.
(4) Petitioner’s memorandum reporting of respiratory
difficulties while driving to work, including being
helped by another motorist who was kind enough
to stop and try to assist him on a rainy day.
Dr. Vorosmarti denied every one of Petitioner’s
requests fora RA. One ofthis denials said that a Dr. Bradley
agreed with him. Subsequently, during an EEOC
investigation, Dr. Vorosmarti signed an affidavit that he did
not consult with other physicians about Petitioner’s case.
Petitioner did not get a copy of that affidavit and was not
aware of it until 2 year after he initiated contact with an EEO
counselor. That contact was made less than 45 days after the
last denial of Petitioner’s request fora RA. The contact was
also made more than 45 days after other earlier denials of the
same request.
Petitioner’s Complaint alleges that the continuous denial
of his requests for RA caused him to suffer on the way to work
and shortly after arriving at work, and that he used 4 days
of sick leave which could have been worked had he been
allowed to work from home on those days (Apx. 30A-31A).
It was after using a volume ventilator before leaving for work in
the morning that Petitioner learned that his symptoms were less
of a struggle for him. By using a pulse oximeter to measure
oxygen saturation levels and pulse rate, he could know when
his volume ventilator inflated him with enough air to show a
saturation level of oxygen to where he felt confident enough to
leave for work with less likelihood of respiratory distress while
driving.
The district court opinion states that Petitioner does
not allege a hostile work environment, nor does Petitioner
present evidence of such conduct to create a hostile work
environment (Apx. 16A). The complaint alleges that
notwithstanding the weight of the evidence submitted to him,
Dr. Vorosmarti refused to consult with either of Petitioner’s
physicians and refused to recommend a RA for him to work
at home (Apx. 33A). The complaint also alleges that on 4
dates that Petitioner could have worked at home if permitted,
he used sick leave because of feeling unable to cope with
weather conditions (Apx. 314A).
5
In the district court, Petitioner submitted an affidavit
from his treating physiatrist (physical medicine specialist) who
gave his opinion that
e Dr. Vorosmarti was wrong to say "There is no other
medical information about his respiratory problem
that I feel is needed---",
e Dr. Vorosmarti misinterpreted Petitioner’s symptoms
as “anxiety attacks",
e Dr. Vorosmarti’s refusal to consult any respiratory
specialist in restrictive pulmonary conditions was
deplorable.
The district court opinion (Apx. 16) states that all
Count I alleges to ground liability is an unreasonable and
adverse decision by FDA administrators. The opinion called
the adverse decision a single act based on the complaint
which says (Apx. 34) “Dr Vorosmarti’s opinion refusing to
grant me a RA to work at home----.“ Dr. Vorosmarti’s
denial notices were included in the record submitted to the
district court. Finding a single act and not multiple acts, the
district court opinion says this act is neither severe nor
pervasive, and that Petitioner nowhere alleges the kind of
systemic harassment that significantly alters employment
conditions.
In a denial of one of Petitioner’s requests for a RA,
Dr. Vorosmarti wrote about using tranquilizers as a treatment
option. Tranquilizers do not treat insufficient oxygen levels
that cause rapid heartbeats. As a pharmacist, Petitioner has
seen many patients treated with antidepressants after starting
on tranquilizers.
’ a Ds
Were emenn row
Treatment of Petitioner’s disability has ramifications
that apply to those who do not have his disability. Although
it is known that oxygen slows the heart rate, Petitioner has
found that sleeping with added oxygen gives a more restful
sleep and enables him to fall asleep quicker than without it.
Petitioner has also checked his blood sugar levels daily and
has found that they have been lower after sleeping with
added oxygen than without it. Petitioner explains how the
public can benefit from this information under Reasons for
Granting the Writ.
Count III Retaliation
The following events chronologically occurred:
(1) December 27, 1999: Petitioner’s second line supervisor
wrote a memorandum that Petitioner could work at home
twice a week based on his performance over the past year.
(2) January 24, 2000: Petitioner filed an Appellant’s Brief
of his employment discrimination claim with EEOC’s
Office of Federal Operations, and sent a copy to
Respondent.
(3) January 31, 2000: Petitioner’s former immediate
supervisor rated his final performance evaluation
for 1999 “fails to meet performance measures.”
(4) February 1, 2000, Petitioner’s second line supervisor
signed Petitioner’s final performance evaluation for
1999 as reviewing official and didn’t see any of
Petitioner’s work for the period being rated.
(5) February 22, 2000: Respondent’s Appellee’s Brief
to EEOC’s Office of Federal Operations contained a
statement that Petitioner received a rating of “fails to
meet performance measures” for 1999.
7
Petitioner appealed the rating which was overturned.
Subsequently, his second line supervisor said “over the past
year” in his December 27, 1999 memorandum meant the
performance evaluation for 1998.
Bonus cash awards were given to employees in
Petitioner’s division. According to Petitioner’s calculations
submitted to the district court, the average cash award to each
eligible employee was approximately $718.00. Petitioner
didn’t get one and asked his second line supervisor the
criteria for awarding bonuses. The second line supervisor
said it was based on performance and refused to award a
bonus to Petitioner. The money for that cash award bonus
was from a budgeted amount for use by the division.
Petitioner’s complaint did not mention that he did not
receive a cash award bonus as a result of the initial rating of
“fails to meet performance measures,” however Petitioner
submitted an affidavit on that point to the district court. The
district court opinion said in footnote 6 that Petitioner didn’t
show.any loss in compensation resulting from the initial
negative rating (Apx. 24A).
REASONS FOR GRANTING THE WRIT
I(a). The Courts Below Erroneously Held that
Petitioner’s Case was Time Barred.
Petitioner’s employment disability discrimination
claim under the Rehabilitation Act of 1973, as amended
should not have been time barred because a series of
separate discriminatory acts collectively constituted an
“unlawful employment practice” in a hostile work
environment when one of Petitioner’s acts fell within a
regulatory period even though other acts did not.
8
The circuit courts of appeals were divided on whether
to allow continuous disability discrimination claims to be
maintained under the ADA if affected individuals failed to
meet regulatory requirements to contact an EEO counselor or
person of similar status within a given time after notice of
discrimination. The Rehabilitation Act under 29 USC 791(g)
follows the same senderde as the ADA. This Court <-aices
those splits in Nationa ad Passeng
536 U.S. 101 (2002).
Morgan held that in a series of separate discriminatory
acts that collectively constitute one “unlawful employment
practice” in a hostile work environment (HWE), if at least
one act falls within the filing period, it does not matter that
some of the component acts fall outside of the statutory time
period. HWE claims involve repeated conduct, therefore they
differ from discrete acts. Id. HWE acts include, among other
things, physically threatening acts that interfere with an
employee’s work performance. Id. Discrete discriminatory
claims were held to be not actionable, if time barred, even
when related to acts alleged in timely filed charges. Id.
Discrete acts such as termination, failure to promote, denial
of transfer, or refusal to hire are easy to identify. Id. Each
incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable
“actionable employment practice.” Id.
Dr. Vorosmarti’s continuous refusal to grant
Petitioner’s requests for a RA was as “physically
threatening” as could be, having caused Petitioner to endure
oxygen desaturation episodes on the way to work. His
denials were not merely unreasonable. They were harassing.
Harassment need not be limited to verbal attack, but can also
be accomplished by repeated misconduct such as that of Dr.
Vorosmarti when he disregarded evidence before him and did
not consult others qualified to evaluate Petitioner’s requests
9
for RA. Petitioner’s use of sick leave when he could have
worked at home, and his need to delay beginning to work
upon arrival at the office are interferences with his work
performance. Consequently, Petitioner submits that he has
demonstrated a hostile work environment that interfered with
his work performance.
Petitioner met the 45-day deadline set by 29 CFR
1614.105(a)(1) one time by contacting an EEO Counselor
on September 2, 1977, less than 45 days after July 23, 1997,
when Dr. Vorosmarti denied Petitioner’s request for a RA.
An affidavit by Petitioner’s physiatrist should
constitute evidence probative of Dr. Vorosmarti’s denials of
requests for RA as being violative of the Act. Under the
Morgan rule, all of Dr. Vorosmarti’s denials of Petitioner’s
requests for RA would be discriminatory, and be treated as
“one unlawful practice.” Hence, Petitioner submits that he is
entitled to include all other denials of his requests for RA to
maintain his employment disability discrimination claim.
Since Petitioner wasn’t aware until September 2,
1998 of Dr. Vorosmarti’s affidavit that was inconsistent with
his denial memorandum where he wrote that he consulted
another physician about Petitioner’s case, Petitioner’s time to
establish contact with an EEO Counselor should have been
extended from sometime in mid 1996 to 45 days after ©
September 2, 1998. Where a continuing violation involves an
employer’s covert practice of discrimination over a period of
time, an employee can only realize that he is a victim of
discrimination after a series of acts has occurred, and the
limitations period of Title VII or ADA begins to run when the
employee gains such insight. Lewis v. Board of Trustees of
Alabama State University, 874 F.Supp. 1299, 1302-03 (1995).
Since Petitioner’s initial contact with an EEO Counselor had
been made before that date, his claim for that reason also
should not be time barred.
10
oe Ne NRL ENGST ING, pence
The district court stated that Petitioner failed to
contact an EEO counselor more than one year after first
being denied a work at home schedule (Apx. 17A). In the
Morgan case, Morgan failed to make his initial contact with a
The district court opinion saying that only one
decision was adverse to Petitioner was out of context. The
word “opinion” in the complaint (Apx. 34A_ { 2) reflects
collectively on the same Opinion to continuously deny
Petitioner’s numerous requests for RA. To corroborate
I forwarded to Dr. Vorosmarti numerous items of
correspondence---.” (Apx. 32A). Consequently, more than
one decision was adverse to Petitioner.
In light of the above, the courts below were wrong to
such an extent, that this Count should be summarily reversed
under the power of this Court. -
I(b). Lessons Learned From Treating Petitioner’s
Disability Can Benefit the Public Health.
Lessons learned from treating Petitioner’ s disability
can be useful to those without the same disability for treating
other diseases without or with lower doses of drugs.
For people without Petitioner’s disability, exercise
of the diaphragm muscle would strengthen it and enable
an affected person to inhale more than a shallow amount
of air which contains about 20% oxygen. Oxygen levels
would thus be raised, * heart rates would be slower,
¢ diabetes would be controlled, and * sleep would come
quicker and be of better quality.
These conditions could then be treated without drugs
or with reduced dosages of drugs currently taken. Physicians
are encouraged to check their patients’ oxygen saturation
levels, and if low, determine if their patients are chest
breathers or diaphragm breathers. If they are chest breathers,
they should be referred to physical therapists for exercise of
their diaphragm muscles. Such a mode of treatment would
have tremendous economic impact. It would confer safer
treatment on persons who do not have Petitioner’s disability
and who can benefit from it without using other drugs or by
using lower doses of their regularly used drugs for the same
outcomes. Therefore, the reporting of this case has
significant educational value for lay individuals and health
care providers, and should be reported as widely as possible
for the public benefit. It would look good for this Court, too.
The public would be encouraged by hearing from the Court
that there is a relatively easy way to combat widespread
diseases.
IL Eliminating the 45-day Requirement to Contact an
EEO Counselor in Disability Discrimination Cases
Would be Beneficial when Death is Foreseeable.
In cases of foreseeable death, eliminating the 45-day
requirement for a disability discriminated individual to contact
an EEO counselor would deter other would-be violators from
continuing to violate the Act, and potentially save lives.
12
When a person has been discriminated against on the
basis of handicap, and the discriminator has continually
violated his position of trust, he has no incentive to stop when
his victim hasn’t contacted an EEO Counselor ab initio,
because the victim would be time barred from suing. When
this loophole has been taken away, the continuous violator
would have more of a disincentive to continuously violate
the Act. This disincentive does not exist under the current law.
It is foreseeable that a person with a disability such as that of
Petitioner could be caused to die if discrimination continued.
If this Court is concerned that allowing an exception to
the 45-day rule would cause a proliferation of litigation for
continuous violation discrimination cases, this exception is
suggested only for persons with conditions where it is
foreseeable that continuous discrimination can lead to death.
Very few such cases are likely to arise. The suggested
exception to the 45-day rule would not apply to cases of
discomfort or worsening of conditions where death is not
foreseeable.
IIL. The Differences of Opinion in 2 Circuits on Whether a
Cash Award Bonus Reduction to a Federal Employee
Constitutes an “Adverse Employment Condition” in a
Claim of Retaliation Needs Resolution.
Count III---Retaliation
Elements of proof of retaliation require that a victim
engage in a “protected activity,” his employer take an
“adverse employment action” against him, and that a causal
connection exists between the protected activity and the
adverse action. Munday v. Waste Management of North
America, Inc., 126 F.3d 239, 242 (4" Cir. 1997), cert. denied,
522 US 1116 (1998). The key issue herein is whether there
was an “adverse employment action.”
13
A December 27, 1999 memorandum saying that
Petitioner could work at home 2 days a week based on his
performance over the past year, is expected to mean that his
performance for 1999 was satisfactory at a minimum. The
refusal to award a bonus to Petitioner was decided by the same
second line supervisor who issued that memorandum, and is
inconsistent with a "fails to meet" rating. Awarding cash
‘bonuses for satisfactory performance is consistent with
provisions of 5 USC 4503. By saying that “over the past year”
meant the performance evaluation for 1998 rather than for
1999 is a question that should be decided by a jury.
Petitioner originally included a Count II retaliation
claim which he is no longer pursuing. The retaliatory
conduct is similar to that in this Count. Petitioner’s former
immediate supervisor issued a negative performance
memorandum to Petitioner in 1997 shortly after he initially
filed an EEO complaint. When a final performance rating
was given for that year, she knew that different parts of
Petitioner’s work were reviewed by two people, yet she
asked only one of them about his work. Consequently,
Petitioner received an unbalanced rating lower than he
deserved. That evidence is probative of course of conduct
which also ought to be decided by a jury in this retaliation
count when she issued a “fails to meet” rating shortly after
he filed an Appellant’s Brief with the EEOC’s Office of
Federal Operations.
Additional evidence of that course of conduct was
presented to the district court showing that Petitioner’s
former immediate supervisor rated him low in one aspect of
his work although she hadn’t seen any writing samples in
that rating period, and insufficient in another rating period
when Petitioner cast the sole dissenting vote out of about 15
people on an issue, and it was ultimately accepted and used
in a Federal Register publication. Petitioner submits that
14
evidence of that conduct is adequate to refute the district
court opinion in Count II of Defendant’s motivation for a
negative evaluation (Apx. 19A-20A). Petitioner feels that
the discussion of Count II in the district court opinion
presumes her evaluation was legitimate, and that it creates
a bad impression of his work quality, therefore he is
including this paragraph to rebut that presumption. —
Although, Petitioner’s complaint did not allege facts
of an adverse employment action, the evidence before the
district court did. In the district court, Petitioner could
amend his complaint pursuant to FRCP 15(a). Respondent's
Motion to Dismiss or for Summary Judgment is not a
responsive pleading pursuant to FRCP 7(a).
The 4" Circuit and the D.C. Circuit have differed on
whether the reduction of a cash award bonus to a Federal
employee constitutes an adverse employment condition in
cases of a claim of retaliation.
The D.C. Circuit held that loss of a cash award bonus
by a Federal employee was a substantial benefit and an
adverse employment condition in a charge of retaliation.
Russell v. Principi re fV. i
257 F.3d 815 (D.C. Cir 2001).
Russell stated that
e abonus isa tangible, quantifiable award, more
analogous to one’s salary or to a benefit of one’s
employment than to a performance evaluation
e it has a more direct, measurable, and immediate
effect
e the loss of a bonus that is worth hundreds of dollars
is not a petty detriment.
15
Petitioner raised the Russell case in both courts below
and neither one addressed it. Petitioner submits that
Defendant's motive for making his 1999 performance
evaluation as “fails to meet performance measures” was to
make him appear as unqualified during the EEOC appeal.
Thus, he could not comply with 29 CFR 1614.203(a)(6) as a
“qualified” employee. That rating gave his second line
supervisor a purported reason not to award him a bonus. As
a result, he incurred an economic loss of that bonus, which
according to Russell, was an “adverse employee condition.”
Although, this case in the 4" Circuit was
unpublished, to Petitioner’s knowledge, it still holds in that
circuit as the only case covering the issue of whether a loss
of a bonus by a Federal employee constitutes an “adverse
employment action.” The 4™ Circuit opinion is silent, but
in context with the district court opinion and evidence, the
opinion holds by implication that loss of a bonus is not an
adverse employment condition. Pursuant to 4" Circuit
Court local rule 36(c), it can be cited as a precedent.
Resolution of the issue of whether denial of a bonus
is an “adverse employment action” in this case is important
because it affects thousands of Federal employees.
Therefore, this retaliation count is worthy of review by
certiorari, or for summary reversal.
16
CONCLUSION
For the foregoing reasons, if summary reversal is
not ordered, the petition for writ of certiorari should be
granted for both the employee disability discrimination and
retaliation counts.
chael T. Benson
Pro Se
2703 Waco Court
Baltimore, MD 21209
410-484-7262 residence
301-827-2311 office
May 24, 2005
17
ern" —
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
February 23, 2005
No. 04-1599
CA-02-3626-MJG
MICHAEL T. BENSON
Plaintiff - Appellant
Ws
TOMMY G. THOMPSON, SECRETARY,
UNITED STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, Secretary of Health
and Human Services
Defendant - Appellee
On Petition for Rehearing and Rehearing
En Banc
The appellant’s petition for
rehearing and’ rehearing en banc was
submitted to this Court. As no member
of this Court or the panel requested a
poll on the petition for rehearing en
banc, and
1A
As the panel considered the petition
for rehearing and is of the opinion that
it should be denied,
IT IS ORDERED that the petition for
rehearing and rehearing en banc is denied.
entered for a panel composed of Judge
Wilkinson, Judge Traxler, and Judge Shedd.
For the Court,
/s/ Patricia S. Connor
CLERK
2A
a
cence eT Te
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1599
MICHAEL T. BENSON
Plaintiff - Appellant
versus
TOMMY G. THOMPSON, Secretary of
Health and Human Services
Defendant - Appellee
Appeal from the United States District
Court for the District of Maryland, at
Baltimore. Marvin J. Garbis, Senior
District Judge, (CA-02-3626-MJG)
Submitted: October 1, 2004
Decided: October 27, 2004
Before WILKINSON, TPRAXLER, and SHEDD,
Circuit Judges
3A
Affirmed by unpublished per curiam
opinion.
Michael T. Benson, Appellant Pro Se.
Larry David Adams, Assistant United
States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding
precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael T. Benson appeals the
district Court’s orders granting summary
judgment to Defendant and denying
Benson’s motion for Reconsideration. We
have reviewed the record and find no
reversible error. Accordingly, we affirm
for the reasons stated by the district
court. See Benson v. Thompson, No.
CA-02-3626-MJG (D. Md. Mar. 22, 2004; Apr.
1, 2004). We dispense with oral argument
because the facts and legal contentions
are adequately presented in the materials
before the court and argument would not
aid the decisional process.
AFFIRMED
ee
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL T. BENSON *
*
Plaintiff
*
Civil Action No.
MJG-02-3626
(EXEMPT FROM ECF)
Vv.
*
TOMMY G. THOMPSON *
SECRETARY,
U.S. DEPARTMENT OF
HEALTH AND HUMAN
SERVICES *
Defendant *
* * * * * *
MEMORANDUM AND ORDER
The Court has before it Plaintiff’s Motion
to Alter or Amend a Judgment andthe materials
submitted relating thereto. The Court
finds that neither a response nor a
hearing is necessary.
Plaintiff seeks reconsideration of this
Court’s grant of summary judgment to Defendant.
As stated by Judge Ramsey in
Weyerhaeuser Corp. v. Koppers Co., inc. 2
A motion for reconsideration
(or to alter or amend judgment)
5A
made pursuant to Fed. R. Civ.
P. S59(e) may be made for one of
three reasons: (1) an
intervening change in the
controlling law has occurred,
(2) evidence not previously
available has become available,
or (3) it is necessary to
correct a clear error of law or
prevent manifest injustice.
771 F. Supp. 1406, 1419 (D. Md. 1991)
(citation omitted).
There has been no intervening change
in the controlling law and there is no new
evidence available. Moreover, this Court
does not find that it made an error of law
or perpetrated any injustice by its prior
decision.
Inasmuch as Plaintiff wishes to continue
to argue his case, he may, of course,
pursue his appellate rights in the United
States Court of Appeals for the Fourth
Circuit.
For the foregoing reasons:
1. Plaintiff’s Motion to Alter
or Amend a Judgment is
DENIED.
2. The Judgment Order issued
Herein on March 22, 2004
remains in effect.
6A
SO ORDERED THIS 1** DAY OF APRIL, 2004
/S/
Marvin J. Garbis
United States District Judge
7A
%. ,. o
See os a . Fa: 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL T. BENSON 9s
Plaintiff *
*
Civil Action No.
MJG-02-3626
* (EXEMPT FROM ECF)
V.
TOMMY G. THOMPSON
SECRETARY, .
U.S. DEPARTMENT OF
HEALTH AND HUMAN *
SERVICES
*
Defendant
é *
a * * * *
MEMORANDUM AND ORDER
The Court has before it the Motion to
Dismiss or for Summary Judgment (Paper 10)
filed by Defendant Tommy G. Thompson,
Secretary of the U.S. Department of Health
and Human Services (“Defendant” or “HHS”),
as well as the materials submitted by the
parties related thereto. The Court finds
a hearing unnecessary.
Es BACKGROUND
Plaintiff Michael T. Benson
*The facts set forth herein are undisputed or
stated .n the light most favorable to Plaintiff
Michael T. Benson.
8A
a
("Plaintiff“ or “Benson”), pro se, claims
that Defendant, his employer, failed
reasonably to accommodate him in light of
his disability. Benson also accuses HHS
of illegally penalizing him for
attempting to vindicate his civil rights
under federal disabilities law.
A. Plaintiff’s Disability and Request
for Accommodation
Benson is a pharmacist employed by
the U.S. Food and Drug Administration
(“FDA”), an agency within HHS. At all
times relevant hereto, Benson has suffered
from post-polio syndrome and sclerosis,
which compromise his ability to breathe
comfortably in certain situations.
In 1995 and 1996, Benson
participated in his employer’s Flexible
Workplace Arrangements Program (“FWAP”),
whereby he could work at home two days a
week so long as he adequately performed
his work obligations. Def.‘s Ex. A (ex.
7, at 3). In April 1996, the FDA
suspended Benson‘s participation in FWAP,
citing poor performance on unsupervised
projects. Id. (ex. 10, at 1). Benson was
reprimanded for being absent without leave
(“AWOL”) for remaining at home after this
suspension. Id. (ex. 10, at 3).
Following this incident, in May 1996,
Benson informed his supervisors of his
physical disability and requested, as an
9A
accommodation thereof, to resume his FWAP
arrangement .? Benson submitted medical
documentation in support of his request.
Dr. James Vorosmarti reviewed Benson’s
medical file on Defendant’s behalf and on
May 31, 1996, reported that the file did
not support Benson’s requested
accommodation. Id. (ex.:15, at 10).
Benson‘s request was denied.
B. Plaintiff’s Equal Employment
Opportunity Grievance
In September 1997, Benson began the
process of presenting an Equal Employment
Opportunity (“EEO”) grievance; he
contacted an EEO counselor regarding the
refused FWAP accommodation. Def.’‘s Ex. A
(ex. 1).
Within a month, the EEO counselor
spoke to Benson’s supervisor at the time,
Dr. Linda Katz (“Katz”), regarding
Benson’s disability. At this meeting,
Katz was overheard to have said “We’1l
have to do something about that.” Pl.‘s
Ex. 24, Aff. of Benson, 4 11. In any
case, informal attempts at resolving
this dispute failed, and in November
1997, Benson filed a discrimination
2 Benson appeared to evoke his rights
under federal law. Def.‘s Ex. A (ex. 9, at first
(unnumbered page). Defendant claims this is the
first time it was informed by Benson of his
physical condition. Mem. In Supp. of Mot. to
Dismiss or for Summ. J., at 4.
10A
complaint against HHS with the Equal
Employment Opportunity Commission
(“EEOC”). Def.‘s Ex. A (ex. 3).
Also in November, Benson received
From Katz a memorandum negatively
commenting upon his performance. Pl.
Ex. 24, Aff. of Benson, { 11. ais
on the basis of this memorandum, Benson
failed to receive a bonus in 1997. Id.
At some point, Katz apologized to Benson
for issuing the memorandum, indicating
that “Personnel” compelled her to produce
it. ia.
On May 25, 1999, an EEOC
Administrative Law Judge (“ALJ”) issued a
decision denying Benson relief; The ALJ
dismissed claims pertaining to the 1996
FWAP refusal as not timely filed, though
he held that HHS was under a “continuing
obligation” to provide Benson necessary
and reasonable accommodations. Def.
Ex. J, at 29-31. However, Benson’s
request (to work at home for part of the
week) was deemed not to be such an
accommodation. Id., at 61. In short,
the ALJ held that Benson was not
discriminated against on the basis of
disability.
In January 2000, Benson appealed the
ALJ’s decision to a review office within
the EEOC. Pl.’s Ex. 24, Aff. of Benson,
q p+
11A
i ale
Shortly thereafter, on February 1,
2000, Benson received another negative
performance evaluation from Katz and other
supervisors. Id. Benson challenged this
performance rating before an FDA
administrator, Dr. Robert J. Delap
(“DeLap”), pursuant to the FDA‘s internal
grievance resolution procedures. On June
8, 2000, DeLap determined that Benson‘s
performance was measured by inapplicable
criteria and accordingly directed that
the performance evaluation be withdrawn
from Benson’s record. Def.‘s Ex. W.
In August 2002, the EEOC affirmed
the ALJ‘s decision regarding Defendant’s
denial of Benson’s 1996 FWAP request.
Def.‘s Ex. K.
C. The Instant Civil Action
Benson herein alleges that the
following conduct by Defendant violates
the 1973 Rehabilitation Act and
implementing regulations:
Count I: the denial of a
reasonable accommodation of
Plaintiff‘s disability (i.e.,
FWAP participation) in 1996.
Count II: the 1997 negative
performance evaluation, which
retaliated against Plaintiff
for filing an EEOC complaint
and resulted in lost
compensation;
12A
Count III: the 2000 negative
performance evaluation, which
retaliated against Piaintiff
for appealing the EEOC’s
initial finding of “no
discrimination” and was
ultimately withdrawn from
Plaintiff's employment record.’
Compl. For Employment Discrimination and
Retaliation, at 1, 7-10.
Defendant moves to dismiss these
counts for failing to state a claim or,
in the alternative, seeks summary
judgment. Because both parties urge the
Court to consider matters “beyond the
pleadings” (affidavits, etc.), the Court
treats this Motion as one for summary
judgment. Fed. R. Civ. P. (12 (b) .
I. LEGAL STANDARD
A motion for summary judgment shall
be granted if the pleadings and —
supporting documents “show that there is
no genuine issue as to any material fact
and that the moving party is entitled to
a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). The well-established
principles pertinent to such motions can
be distilled to a simple statement.
3 Counts II and III are collectively
referred to hereinafter as the “Retaliation
Counts.”
13A
The Court may look at the evidence
presented in regard to the motion for
summary judgment through the non-movant’s
rose colored glasses, but must view it
realistically. After so doing, the
essential question is whether a reasonable
fact finder could return a verdict for the
non-movant or whether the movant would, at
trial, be entitled to judgment as a matter
of law. E.g., Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986); Celotex Corp
v.Catrett, 477 U.S. 317, 327 (1986);
Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); Shealy v. Winston,
929 F.2d 1009, 1012 (4™ Cir. 1991).
II. DISCUSSION
A. Count I
1. The Reasonable Accommodation
Claim is Time-Barred
Title 29, Part 1614 of the Code of
Federal Regulations governs EEO
procedures applicable to federal
employees such as Benson; 29 C.F.R.
§ 1614.105(a) (1) provides:
An aggrieved person must initiate
contact with a[n EEO] Counselor
within 45 days of the date of the
matter alleged to be discriminatory,
or in the case of personnel action,
within 45 days of the effective date
of the action.
14A
’ Because complainants are required to
exhaust EEO procedures before accessing
this Court, the Court generally cannot
consider matters not timely and properly
addressed before the EEOC. See Zografov
v. V.A. Med. Ctr., 779 F.2d 967, 968
(4™ Cir. 1985) .
As the ALJ rightly held, Benson
failed timely to begin the EEO process
with respect to the discrimination
alleged in Count I. Benson was refused
FWAP accommodations, following a review
of his medical file, in May 1996.
Def.’s Ex. A (ex. 15, at 10). He first
consulted an EEO counselor on September 2,
1997, clearly more than forty-five days
later. See Def.’s Ex. A (ex. 1).
1. No “Continuing Violation” is
Alleged
Benson contends that his complaint
was timely, inasmuch as he alleged a
violation of law that continued, at least,
into the fall of 1997. As the U.S.
Supreme Court has stated. However, such
“continuting violation” exceptions to
limitation periods are quite narrow:
“(D]iscrete acts that fall within the
[regulatory] time period do not make
timely acts that fall outside the time
period.” Nat‘’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 112 (2002). This
is generally so even where time-barred
and non-time-barred acts are “related.”
Id., at 113.
15A
Nevertheless, there is an established
exception to the Morgan rule: Where
various acts are alleged to have
contributed to a “hostile work
environment,” the fact that iimitations
may have run on one or several
of such acts does not preclude a court
from considering them in determining
whether a hostile work environment was in
fact created. E. g., Fitzgerald v.
Henderson, 251 F.3d 345, 361-62 (2d Cir.
2001). To establish a hostile work
environment, a Plaintiff must prove,
inter alia, actions sufficiently severe or
pervasive to alter employment conditions.
Spicer v. Va. Dep’t of Corr., 66 F.3d 705,
709-10 (4™ Cir. 1995).
Benson, however, does not allege a
hostile work environment, nor does he
present evidence of such conduct that in
any way could suffice to create a hostile
work environment. All Count I alleges,
to ground liability, is an unreasonable
and adverse decision by FDA
administrators. Compl. For Employment
Discrimination and Retaliation, at 7.
This single act is neither severe nor
pervasive. Benson nowhere alleges the
kind of systemic harassment that
significantly alters employment
conditions. There is thus no appropriate
context for this Court to consider the
1996 FWAP refusal (or any other events
that occurred prior to approximately July
1S, 4997).
16A
a a
2. Equitable Principles do not
Counsel Exception
Even if the Court could, under
principles of equity, waive the
requirement that Plaintiff timely and
properly exhaust EEO administrative
procedures, this is not an appropriate
case for the Court to do so. Benson had
ample opportunity, after the 1996 FWAP
refusal, to challenge the FDA‘s decision
and contact an EEO counselor. He
nevertheless failed to do so, until over
a year later.
The Court should reserve its equity
powers to ignore deadlines for those
cases where it is necessary to correct a
manifest injustice. See, €-g., Alexander
v. Britt, 89 F.3d 194, 197 (4™ Cir.
1996). The *nstant case presents no such
circumstances.
B. The Retaliation Counts
A plaintiff may establish a prima
facie case of illegal retaliation by
showing: 1) that he engaged ina
“protected activity;” 2) that his
employer took an “adverse employment
action” against him; and 3) that a causal
connection exists between the protected
activity and the adverse action. Munday
v. Waste Mgmt. of N. Am., Inc., 126 F.3d
239, 242 (4™ Cir. 1997) (citation
omitted).
17A
If the plaintiff establishes a prima
facie case, an inference of retaliation
arises. A defendant may rebut this
inference by articulating legitimate, non-
retaliatory reason(s) for its actions,
for instance related to the plaintiff's
job performance. Evans v. Technolgies
Applications & Serv. Co. 80 F.3d 954,
960 (4™ Cir. 1996). If such a reason is
stated, the plaintiff may nevertheless ~
establish liability if he shows that the
reason is pretextual, by demonstrating
either that: 1) the defendant’s statements
are not true; or 2) the proffered reason,
even if factually supported, is not the
actual reason for the defendant’s decision.
See Dennis v. Columbia Colleton Md. Ctr.,
Inc., 290 F.3d 639, 648 n.4 (4™ Cir. 2002).
(8 Count II
With respect to Count II, Benson has
presented evidence adequate to establish
that he engaged in protected activity (by
filing an EEOC complaint). Moreover,
crediting Plaintiff’s version of the facts
(as the Court must do in the instant
summary judgment context), Benson
suffered an adverse employment action: he
received a negative performance rating in
18A
1997, which resulted in a lost bonus . ‘
See Boone, 178 F.3d at 255-56 (lost
compensation signals as “adverse
employment action”). The Court
assumes, without deciding, that
Benson has demonstrated some causal
connection between the EEOC complaint
and the 1997 rating and that therefore,
Benson has established a prima facie
case of retaliation.
Defendant, however, has articulated
a legitimate motivation for the negative
evaluation - namely, that Benson
performed his duties poorly. E.g.,
Def.‘s Ex Q, Decl. of Katz, ¢¥ 3 (Benson
made an error in replying to a citizen
petition). See Evans, 80 F.3d at 960
(reasons related to job performance are
legitimate bases for adverse employment
decisions). Benson has not produced
evidence sufficient to raise genuine
issues of material fact as to Defendant’s
justifications for its actions. Therefore,
Benson cannot avoid summary judgment on this
claim. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 148 (2000).
4 Defendant initially misunderstood
precisely which of Benson’s performance
evaluations Count II addressed. After Benson
clarified his claim, Defendant acknowledged Count
II to regard the November 1997 evaluation. Reply
Mem. In Supp. of Mot. to Dismiss or for Summ. J.,
at 7 no. 3. Nowhere in its Reply Memorandum did
Defendant refute Benson’s allegation that he lost
a bonus as a result of this negative evaluation.
19A
Benson has not presented evidence
adequate to refute the key facts
underlying Defendant’s justification; he
does not deny that there were problems
with his work performance. Benson
suggests that Defendant’s proffered
explanation for its actions are pretext.
He makes several challenges to
Defendant’s justification, which the
Court considers in turn.
Benson cites Katz’s comment to the
EEO counselor, that “[wje’ll have to
something about [Benson’s complaint]”,
to evidence Defendant’s retaliatory
intentions. [Pl.‘s] Reply Mem., at 23.
This is not a reasonable interpretation
of the comment, which, in context,
expressed constructive rather than
retaliatory feelings. To the extent, if
at all, that a fact finder could
construe the comment as indicating a
retaliatory feeling on the part of Katz,
even this would not suffice to raise a
genuine issue of material fact in view of
the totality of evidence in the case.
Benson also cites Katz’s alleged
apology for the 1997 evaluation. Id.
According to Benson, Katz intimated that
“personnel office people forced her
to issue that memo[.]” Id. Assuming
that this is true, it indicates only that
Katz made a conciliatory rather than
confrontational remark to Benson. In any
event, even if the personnel office
directed Katz to issue the negative
20A
evaluation, the critical question is
whether the evaluation was justified.
Benson seems to argue the temporal
proximity between the EEOC filing and
the 1997 rating indicates an illegal
connection between the two events.
However, mere proof of temporal proximity
4s insufficient to establish such a
connection and cannot support an ultimate
finding of retaliation. Shoaf v.
Kimberly-Clark Corp., 294 F.Supp.2d 746,
758 (M.D. N.C. 2003) (“Plaintiff cannot
rely on temporal proximity alone to
establish pretext”); see also Ingram V-
Balt. Gas & Elec. Co., No. 02-2869, slip
op. at 13 (D. Md. Feb. 25, 2004)
(temporal proximity alone may not suffice
even to establish a prima facie case};
Mathis v. Perry, 996 F.Supp. 503, 518-19
(E.D. Va. 1997). This is so particularly
where, as here, legitimate bases for an
employers actions (e.g., criticisms of an
employee’s performance) predate
considerably the protected activity
allegedly retaliated against.” See id.
Benson suggests that Defendant’s
justification is pretext because the
negative evaluation was an adverse action
disproportionate to Benson’‘s workplace
shortcomings., According to Benson, the
s As detailed above, Benson‘s performance
was called into question in April 1996, about
seventeen months before the EEO process began.
21A
key performance problem at issue - his
erroneous reference to a specific
deadline in FDA correspondence - was
minor. Compl. for Employment
Discrimination and Retaliation, at 3-4.
Yet, as Benson concedes, there was more
to this problem than just work-product
mistake. Following the mistake, Benson’s
superior took measures to ensure that
Benson be supervised more closely, which
Plaintiff subsequently frustrated by going
AWOL. Id.; Def.’s Ex A (ex. 10, at 3).
Particularly considering Benson’s work
product problem together with his
insubordination, Defendant’s 1997
evaluation was not a disproportionate
response.
Finally, Benson’s work qualifications
(listed, e.g., in [Pl.s] Reply Mem., at
4-7) do not undermine Defendant’‘s
contention that he perfomed his work
poorly. Poor performance may undoubtedly
accompany even spectacular qualifications.
In short, Plaintiff does not present
evidence adequate to refute Defendant’s
articulation of a legitimate motive for
its actions. No reasonable trier of fact
could find that, in issuing the 1997
performance evaluation, Defendant acted
with retaliatory intent. Accordingly,
Defendant is entitled to summary judgment
on Count II.
22A
2. Count III
Benson has not presented evidence to
establish a prima facie case of
retaliation with regard to Count III.
While Benson engaged in protected
activity (by appealing an EEOC finding),
he suffered no “adverse employment
action” when Defendant negatively rated
his work performance. Indeed, Defendant
later withdrew this report from Benson’s
employment file so that the report had no
substantial effect whatsoever.
United States Court of Appeals for
the Fourth Circuit decisions indicate
that an “adverse employment action,”
within the meaning of federal anti-
discrimination law, is, generally, an
“ultimate” action - i.e., a hiring,
promotion, termination, or some other
action with long-term effect, as opposed
to an “interlocutory or mediate
decision[.]” Page v. Bolger, 645 F.2d
227, 233 (4™ Cir. 1981). Because the
FDA, upon further review of Benson’s
2000 evaluation, rendered it essentially
without effect, the negative comments
included therein must be deemed
“interlocutory.”
Cases subsequent to Page suggest
that, in rare circumstances, non-
“ultimate” actions may suffice to ground
liability. Von Gunten v. Maryland, 243
F.3d 858, 866 (4 Cir. 2001); Jensvold v.
Shalala, 829 F.Supp. 131, 136-37 (D. Md
23A
1993). However, to constitute an “adverse
employment action,” such conduct by an
employer must materially and detrimentally
alter the terms, conditions, or benefits
of the claimant’s employment Boone v.
Goldin, 178 F.3d 253, 255-56 (4™ Cir.
1999); Jeffers v. Thompson, 264 F.Supp. 2d
314, 329 (D. Md. 2003) (citation omitted).
Benson’s negative rating in 2000,
withdrawn from his employment file some
four months after it was issued, had
no such material and detrimental impact.®
Accordingly, Defendant is entitled
to Summary judgment with regard to Count
os
IV. CONCLUSION
For the foregoing reasons:
2s The Motion to Dismiss or for
Summary Judgment filed by
Defendant Tommy G. Thompson,
Secretary of the U.S. Department
of Health and Human Services
{Paper 10] is GRANTED.
as Judgment shall be entered by
separate Order.
6 Indeed, Benson has not shown that any
loss in compensation resulted from the initially
negative 2000 rating.
24A
SO ORDERED this 22™ day of March, 2004.
/s/
Marvin J. Garbis
United States District Judge
25A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL T. BENSON .
+
Plaintiff
Vv. * Civil Action No.
MJG-02-3626
TOMMY G. THOMPSON * (EXEMPT FROM ECF)
SECRETARY,
U.S. DEPARTMENT OF *
HEALTH AND HUMAN
SERVICES
Defendant *
* * * * *
JUDGMENT ORDER
By separate Order issued this date, the
Court has granted summary judgment to
Defendant.
Accordingly,
1. Judgment shall be, and
hereby is, entered in favor
of Defendant Tommy G.
Thompson, Secretary, U.S.
Department of Health and
Human Services against all
claims with prejudice with
costs.
26A
2. Any and all prior rulings
disposing of any claims
against any parties are
incorporated by reference
herein.
3. This Order shall pe deemed
to be a final judgment
within the meaning of Rule
58 of the Federal Rules of
Civil Procedure.
SO ORDERED this 22™ day of March, 2004.
/sf
Marvin J. Garbis
United States District Judge
an Tie hill’
*
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL T. BENSON
2703 Waco Court
Baltimore, MD 21209
Plaintiff
Vv. Civil Action No.:
MJG-02-3626
TOMMY G. THOMPSON
Secretary,
Department of Health and Human Services,
(Food and Drug Administration), Agency
200 Independence Avenue, S.W.,
Room 615-F
Washington, DC 20201
Defendant
COMPLAINT FOR EMPLOYMENT
DISCRIMINATION and RETALIATION
FACTS APPLICABLE TO ALL COUNTS
1. Plaintiff is a resident of Baltimore
County, Maryland.
2. Defendant does business at the
following location: 9201 Corporate
Boulevard, Rockville, MD 20855.
3. This action is brought pursuant to the
Rehabilitation Act of 1973, as
amended, §§ 791, et seq., for
28A
iat aii lt
employment discrimination by a Federal
agency on the basis of a disability,
and pursuant to 29 CFR 1614.101(b) the
regulation which implements 29 USC
791, et seq, for retaliation by that
agency's officials.
I am complaining about (1) Federal
agency officials refusing to let me
work at home 2 days a week as a
reasonable accommodation for
alleviating my symptoms caused by post
polio syndrome of the respiratory
muscles together with severe scoliosis
secondary to polio of the abdominal
muscles, and (2) Federal agency
officials retaliating against me twice
for pursuing my complaint.
The conduct of Defendant’s agents was
discriminatory because it was based on
disability.
_ The facts of my claim are: The
conditions cited in paragraph 4
substantially impair my major life
activities by significantly
compromising my pulmonary function
(breathing ability) and by causing me
to become hypoxic (too low oxygen
levels) and hypercapnic (too high
carbon dioxide levels) at times; I have
a record of such impairments and am
regarded by Defendant as having such
impairments.
29A
TS a OR LE LN Lee ea eT Te ey ee Oe a eT aa eT TS
‘eee ee ao
I was on sick leave away from my
office from November 30, 1994 until April
17, 1995 for the purpose of having spinal
surgery and of recuperating from it in
what turned out to be an unsuccessful
attempt to improve my pulmonary function.
In March 1995 while recuperating
from surgery, I was permitted to work
from home 2 days a week in a program
known as flexiplace and continued to work
at home on Tuesdays and Thursdays; my
flexiplace program continued when I
returned to my office to work on April 17,
1995 and continued until April 18, 1996;
numerous of my co-workers worked at home
on the same program.
I resided and continue to reside in
Baltimore County, MD approximately 1 hour
and 15 minutes drive time from work in
Rockville, MD where I worked and continue
to work as a regulatory review pharmacist
with the Food and Drug Administration
(FDA).
_ I would have worked at home on 204
days from April 18, 1996 through January
28, 1999 had management allowed me; on
those dates, I suffered the following
symptoms in the morning while driving to
work and after arriving at work: (1)
could not inhale a sufficient volume of
air as can be done normally (alveolar
hypoventilation), (2) incurred a rapid
heart rate, and (3) felt on the verge of
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cece LI Oe i
passing out. On arrival at my office, I
had to take time to recuperate by leaning
against a wall until those symptoms
subsided and I felt able to work; an
opinion by a respiratory therapist was
that while driving, I had a desaturation
(lowering) of oxygen levels in my body; I
sensed that while recuperating at work,
my oxygen saturation levels became
restored so that I could work; on many of
those drives, I felt relief by getting
out of the car on the way to work and
standing for a few minutes, but on days
with inclement weather, this procedure was
frightening.
On 4 other dates that I could have
worked at home if permitted, I used sick
leave because of feeling unable to cope
with weather conditions.
On April 16, 1996 my former
supervisor, Anne Mustafa (now deceased)
told me that she stopped my use of the
work-at-home schedule because she blamed
me for drafting an issued letter which
stated a specific date for a deadline
instead of “until further notice.” She
said that I needed to be more closely
"supervised. ”
Seeing that there was no difference
In “supervision” when I was at the office,
I sent an E-Mail message to Mustafa on May
6, 1996 asking for her authorization to
work at home on May 7, 1996. I first
received her response on May 7, 1996 as a
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phone call at home approximately several
minutes after 9:00 AM denying my request
and ordering me to come to the office. I
drove to the office and arrived shortly
after 11:00 AM. Mustafa charged me with
1-3/4 hours of AWOL and my pay was
reduced by $59.38. She issued a June 17,
1996 corrected reprimand for that AWOL
charge.
On May 20, 1996, I raised my medical
condition for seeking the accommodation
to work from home and was referred to the
Agency's Division of Employee Labor
Relations (FDA’s personnel office) whose
representatives under the former Director,
Ms. Kathryn Vengazo told me that I needed
to submit documentation to the Agency's
contract physician. I did that and my
papers were referred to James Vorosmarti,
Jr., M.D., a specialist in occupational
medicine. On various occasions, I
forwarded to Dr. Vorosmarti numerous items
of correspondence including, among other
things (1) a letter from one of my
physicians that sitting in a car with a
low seat can compromise the mechanics of
respiration, and that since I am
chronically hypoxic, this additional
compromise can be detrimental to me, and
(2) a copy of a Department of Health and
Human Services (DHHS) fact sheet (NIH
Publication No. 96-4030) which said that
in general, post polio syndrome is not
life threatening, however, the only
exception is in patients who experience
severe respiratory impairment.
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4
pert et A OO,
.
eee oe
Nothwithstanding the weight of the
evidence submitted to him, Dr. Vorosmarti
refused to consult with either of my
physicians and refused to recommend a
reasonable accommodation for me to work
at home.
On or about April 1, 1997, Dr. Linda
M. Katz became my immediate supervisor and
did not allow my return to a flexiplace
schedule until February 24, 1998 for one
day only, then discontinued that schedule
until some later time. I eventually
figured out how to more effectively cope
with my symptoms while driving to work; I
began to use and continue to use a volume
ventilator to increase my oxygen
saturation levels and monitor those levels
with a pulse oximeter before leaving for
work. I was qualified to perform my job
functions during the time when my work at
home schedule was denied, and at no time
did I ever receive a final sustained
rating of less than “meets performance
measures.” After finding that cértain of
management’s actions along with those of
FDA’s personnel office were adverse to me
without justification, I joined the
National Treasury Employees Union (NTEU)
for possible protection against
management adverse action, incurred union
dues expenses of $402.98, and would not
otherwise have joined NTEU.
I incurred attorney’s fee expenses
of $500.00 in this case when it was
before the Equal Employment Opportunity
Commission (EEOC), and am filing this
case Pro se because of the significant
expense of hiring legal counsel on a per
hour noncontingent basis.
Dr. Vorosmarti’s opinion refusing
to grant me a reasonable accommodation to
work at home 2 days a week disregarded
the opinions of two physicians, a
respiratory therapist and Defendant’s
written admission of danger; Dr.
Vorosmarti had the opportunity to
communicate with any of my health care
contacts made known to him and did not do
so.
Dr. Vorosmarti wrote that a Dr.
Bradley agreed with him, and later signed
an affidavit saying he didn’t consult
with any other physicians about my
condition. I asked FDA‘s personnel
office to assign my case to another
physician. The request was denied.
COUNT I
Dr. Vorosmarti’s opinion was false,
malicious, in bad faith, and with
deliberate indifference to my federally
protected rights, and was known to be so
by Ms. Kathryn Vengazo, former Director
of FDA’s personnel division. Had he
Given a recommendation for my requested
reasonable accommodation, I would have
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a
° ‘
. .
been spared the physical suffering
described above.
WHEREFORE, Plaintiff asks the Court to
grant such relief as may be appropriate,
including but not limited to: .
A. an award of compensatory damages of
$3,000,000.00 against Defendant for
physical suffering;
B. an award of compensatory damages of
$59.38 against Defendant for 1-3/4
hours of pay deducted as AWOL from
Plaintiff's salary;
C. rescission of his AWOL charge;
D. an award of compensatory damages of
$402.98 against Defendant for dues
paid to the National Treasury
Employees Union;
E. an award of compensatory damages of
$500.00 against Defendant for ~past
attorney’s fees;
F. rescission of Defendant’s June 17,
1996 Corrected Reprimand issued to
Plaintiff; and
G. restoration of 4 days (32 hours) of
sick leave'to Plaintiff’s accrued sick
leave time.
COUNT II
On September 2, 1997 I began FDA‘s
EEO Complaint process. Afterwards, an
EEO counselor, Charles Arp went with me
to introduce himself to my former
immediate supervisor, Dr. Linda M. Katz
and discussed aspects of. my EEO complaint
with her.
I clearly heard Dr. Katz remark
“We'll have to do something about that.”
and she did, by issuing a “Performance
Memo” prepared under the direction of Ms.
Kathryn Vengazo formerly of FDA‘’s
Personnel office. I found that memo
demeaning and substantially incorrect
and issued a reply memo.
The issuance of the “Performance
Memo" was in retaliation for my filing an
EEO complaint and caused me unnecessary
anguish.
WHEREFORE, Plaintiff asks the Court to
grant such relief as may be appropriate,
including but not limited to:
A. an award of compensatory damages of
$500,000.00 against Defendant.
COUNT III
By memorandum dated December 27,
1999, Dr. Charles Ganley, supervisor to
Dr. Linda M. Katz wrote that I could work
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a flexiplace schedule based on my
performance over the past year; I was on
leave after that date for the remainder
of 1999. On January 24, 2000, I filed
an Appellant’s Brief with the Office of
Federal Operations (OFO) of the EEOC and
sent copies to the agency and its
attorney.
On January 31, 2000, Dr. Katz’ final
performance evaluation of me was “fails
to meet performance measures.” On
February 1, 2000, Dr. Ganley signed the
paper as a reviewing official, and hadn‘t
seen any of my work for the period being
rated. Ms. Theresa Foster of FDA‘s
personnel office influenced both Drs.
Katz and Ganley on how they prepared my
performance evaluation for that time and
was aware of my having filed an
Appellant's Brief to the EEOC decision.
I successfully appealed that performance
rating, and it was stricken.
An FDA personnel employee informed
DHHS’ Office of General Counsel that my
performance rating for 1999 was “fails to
meet performance measures.” That
information was written in the Agency‘’s
Appellee’s Brief filed February 22, 2000
when this case was in EEOC’s OFO.
The "fails to meet performance
measures" rating was in retaliation for
my maintaining an EEOC complaint and was
designed in bad faith to make me appear
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as an unqualified employee for litigation
purposes of that complaint. That rating
caused me much anguish and sleepless
nights.
WHEREFORE, Plaintiff asks the Court to
grant such relief as may be appropriate,
including but not limited to:
A. an award of compensatory damages of
$500,000.00 against Defendant.
7. The approximate number of people
employed by Defendant is thousands.
8. The events I am complaining about took
place on the following dates or time
period: April 18, 1996 through February
22, 2000.
9. I filed charges on the following dates:
(1) November 12, 1997
FDA’s Office of Equal Employment
and Civil Rights (Agency Case No.
FDA-D-012-98),
(2) December 15, 1998
Equal Employment Opportunity
Commission (EEOC Case No.
120-99-6120X),
(3) January 24, 2000
EEOC’s Office of Federal
Operations (Docket No. 01A01719).
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cect OLLI
10. I received a right to sue letter
(copy attached) on the following
date: August 12, 2002.
JURY DEMAND: Plaintiff demands a jury on
all issues which can be heard by a jury.
/s/
MICHAEL T. BENSON
Pro Se
2703 Waco Court
Baltimore, MD 21209
410-484-7262 residence
301-827-2311 office
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U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
Michael T. Benson
Complainant
we
Tommy G. Thompson,
Secretary,
Department of Health and Human
Services
(Food and Drug Administration),
Agency
Appeal No. 01A01719
Agency No. FDA-D-012-98
Hearing No. 120-99-6120X
DECISION
Pursuant to 29 C.F.R. § 1614.405, the
Commission accepts the complainant’s
appeal in the above-entitled matter.
The record reveals that complainant filed
a formal EEO complaint alleging that the
agency had discriminated against him on
the basis of disability (post polio
syndrome) when he was denied permission
to work at home two days per week. At
the conclusion of the investigation,
complainant was provided a copy of the
investigative report and requested a
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hearing before an EEOC Administrative
Judge. Following an oral hearing on the
agency’s motion for summary judgment,
the Administrative Judge determined that
summary judgment was appropriate and
issued a decision, finding no
discrimination. The agency did not
issue a‘final order, and consequently,
the Administrative Judge’s decision
became the agency’s final action. 29
C.F.R. § 1614.109(i).
After a review of the record in its
entirety, including consideration of all
statements submitted on appeal, it is
the decision of the Commission to affirm
the agency’s final order, because the
Administrative Judge’s issuance of a
Decision without a hearing was
appropriate and a preponderance of the
record evidence does not establish that
discrimination occurred.
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 argument or
evidence which tend to establish
1. The appellate decision involved a
clearly erroneous interpretation of
material fact or law; or
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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 30 (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
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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 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
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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 paragraph above
(“Right to File A Civil Action”).
FOR THE COMMISSION:
/S/
Carlton M. Hadden, Director
Office of Federal Operations
Aug 07 2002
Date
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:
Aug 07 2002
Date
/s/ (illegible)
Equal Opportunity Assistant
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rete?
RELEVANT STATUTUORY AND REGULATORY
PROVISIONS, AND RULES
Rehabilitation Act of 1973, as amended
29 U.S.C. § 791 Employment of individuals with disabilities
(b) Fedeal agencies; affirmative action program plans
Each department, agency, and instrumentality---in the
executive branch and the Smithsonian Institution shall
submit to the Commission (EEOC) and to the Committee
(Interagency Committee on Employees who are Individuals
with Disabilities) an affirmative action program plan for the
hiring, placement, and advancement of individuals with
disabilities in such department, agency, instrumentality or
Institution. Such plan shall include a description of the
extent to which and methods whereby the special needs of
employees who are individuals with disabilities are being met.
(g) Standards used in determining violation of section
The standards used to determine whether this section has been
violated in a complaint alleging nonaffirmative action
employment discrimination under this section shall be the
standards applied under title I of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the
provisions of sections 501 through 504, and 510, of the
American Disabilities Act of 1990 (42 U.S.C. 12201-12204
and 12210), as such sections relate to employment.
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Americans with Disabilities Act of 1990
42 U.S.C. § 12201 Construction
(a) In General
Except as otherwise provided in this chapter, nothing in this
chapter shall be construed to apply a lesser standard than the
standards applied for under title V of the Rehabilitation Act
of 1973 (29 U.S.C. 790, et seq.) or the regulations issued by
Federal agencies pursuant to such title.
42 U.S.C. § 12203. Prohibition against retaliation and
coercion
(a) Retaliation
No person shall discriminate against any individual
because such individual has opposed any act or
practice made unlawful by this chapter or because
such individual made a charge, testified, assisted,
or participated in any manner in an investigation,
proceeding, or hearing under this chapter.
Government Organization and Employees
5 U.S.C. § 4503. Agency awards
The head of an agency may pay a cash award to, and incur
necessary expense for the honorary recognition of, an
employee who—
(1) by his suggestion, invention, superior
accomplishment, or other personal effort
contributes to the efficiency, economy, or other
improvement of Government operations or
achieves a significant reduction in paperwork; or
(2) performs a special act or service in the public
interest in connection with or related to his official
employment.
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RELEVANT REGULATORY PROVISIONS
AND RULES
29 CFR 1614.203 Rehabilitation Act.
(a) Definitions—(1) Individual with handicap(s) is defined
for this section as one who:
(i) Has a physical or mental impairment which substantially
limits one or more of such person’s major life activities;
(ii) Has a record of such impairment; or
(iii) Is regarded as having such an impairment.
(2) Physical or mental impairment means
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of
the following body systems; Neurological, musculoskeletal,
special sense organs, cardiovascular, reproductive,
digestive, respiratory, genitourinary, hemic and lymphatic,
skin, and endocrine; or
(3) Major life activities means functions, such as caring for
one’s self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.
(4) Has a record of such an impairment means has a
history of, or has been classified (or misclassified) as
having, a mental or physical impairment that
substantially limits one or more of major life activities.
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y ee ae ae Tas
(5) Is regarded as having such an impairment means has a
physical or mental impairment that does not substantially
limit major life activities but is treated by an employer as
constituting such a limitation; has a physical or mental
impairment that substantially limits major life activities
only as a result of the attitude of an employer toward such
impairment; or has none of the impairments defined in
paragraph (a)(2) of this section but is treated by an
employer as having such an impairment.
(6) Qualified individual with handicaps means with respect to
(i)
(ii)
(b)
employment, an individual with handicaps who, with or
without reasonable accommodation, can perform the
essential functions of the position in question without
endangering the health and safety of the individual or
others and who, depending upon the type of appointing
authority being used;
Meets the experience or education requirements (which
may include passing a written test) of the position in
question; or .
Meets the criteria for appointment under one of the special
appointing authorities for individuals with handicaps.
The Federal Government shall become a model employer
of individuals with handicaps. Agencies shall give full
consideration to the hiring, placement, and advancement
of qualified individuals with mental and physical
handicaps. An agency shall not discriminate against a
qualified individual with physical or mental handicaps.
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(c) Reasonable accommodation. (1) An agency shall make
reasonable accommodation to the known physical or
mental limitations of an applicant or employee who is a
qualified individual with handicaps unless the agency can
demonstrate that the accommodation would impose an
undue hardship on the operations of its program.
(2) Reasonable accommodation may include, but shall not be
limited to:
(i) Making facilities readily accessible to and usable by
individuals with handicaps; and
(ii) Job restructuring, part-time or modified work schedules
acquisition or modification of equipment or devices,
appropriate adjustment or modification of examinations,
the provision of readers and interpreters, and other
similar actions.
(3) In determining whether, pursuant to paragraph (c) (1) of
this section, an accommodation would impose an undue
hardship on the operation of the agency in question,
factors to be considered include:
(i) The overall size of the agency’s program with respect to
the number of employees, number and type of facilities
and size of budget;
(ii) The type of agency operation, including the composition
and structure of the agency’s work force; and
(iii) The nature and cost of the accommodation.
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29 CFR 1614.105 Pre-complaint processing
(a) Aggrieved persons who also believe they have been
discriminated against on the basis of-----handicap must
consult a Counselor prior to filing a complaint in order to
try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a
Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action.
United States Court of Appeals for the 4" Circuit
Local Rule 36(c) Citation of unpublished dispositions
---—If counsel believes,----, that an unpublished disposition
of any court has precedential value in relation to a material
issue in a case and that there is no published opinion that would
serve as well, such disposition may be cited if counsel serves a
copy thereof on all other parties in the case and on the Court.----
Federal Rules of Civil Procedure
Rule 7(a}—Pleadings
There shall be a complaint and an answer; a reply to a
counterclaim denominated as such, an answer to a
cross-claim, if the answer contains a cross-claim, a
third party complaint if a person who was not an
original party is summoned under the provisions of
Rule 14; and a third party answer, if a third party
complaint is served. No other pleading shall be allowed,
except that the court may order a reply to an answer or a
third party answer.
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Rule 15—-Amended and Supplemental Pleadings
(a) Amendments. A party may amend the party’s pleading
once as a matter of course at any time before a responsive
pleading is served, ----. Otherwise, a party may amend the
party’s pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given when
justice so requires. A party shall plead in response to an
amended pleading within the time remaining for response to
the original pleading or within 10 days after service of the
amended pleading, whichever period may be the longer,
unless the court otherwise orders.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.