01a40069
03-11-2005
Edward B. Hayes, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Edward B. Hayes v. Department of the Navy
01A40069
March 11, 2005
.
Edward B. Hayes,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40069
Agency No. 01-62204-015
Hearing No. 340-A3-3308X
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 Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and 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.
During the relevant time, complainant was a General Machinist,
WG-3414-10, step 5, at the agency's Marine Corps Logistics Base,
in Barstow, California. Believing that he was discriminated against
on the bases of race (African-American) and disability (elbow injury),
complainant contacted the EEO office on April 16, 2001. Informal efforts
to resolve complainant's concerns were unsuccessful.
On June 12, 2001, complainant filed a formal complaint. The formal
complaint and pre-complaint documents reflect that complainant claimed
that he had been working at the agency's Cost Work Center (CWC) 741
when, on April 25, 2000, he was misled by an agency Manager to take a
transfer to CWC 725 for a short duration. The EEO Counselor's Report
indicates that the Manager sought complainant's transfer to CWC 725
because individuals within CSC 741 were �stirring up trouble� and that
complainant's transfer would be in the best interests of everyone.
Complainant agreed to the transfer to CWC 725.
In his formal complaint, complainant stated that the transfer was to
be no longer than 120 days, and that he was to continue working as a
Machinist in CWC 725. Complainant stated that after 120 days, he was not
moved back to CWC 741, and was given no reason why he was not moved back.
Complainant stated that in April 2001, his CWC 725 Supervisor informed
complainant that he was required to work as a Mechanic, and that this
was �not an option.�
On July 9, 2002, the agency issued a document identified as
�Acknowledgment/Partial Dismissal of Discrimination Complaint.� Therein,
the agency determined that the instant complaint was comprised of the
following four claims:
(a) on April 11, 2001, complainant's supervisor required him to work
as a Mechanic, although he is a Machinist, and he was told that this
was not an option and was asked to sign paperwork to make the changes;
(b) on April 11, 2001, his supervisor asked him to sign new performance
standards for the Mechanic position;
(c) on February 20, 2001, he was �forced� to become a Mechanic [instead
of a] Machinist and his supervisor refused his continued request to
transfer from Cost Work Center 725 to 741 as a Machinist, WG-10; and
(d) on April 25, 2000, he had been misled into accepting a temporary
detail to CWC 725.
The agency accepted claims (a) through (c) for investigation. The agency
dismissed claim (d), pursuant to 29 C.F.R. � 1614.107(a)(2), on the
grounds of untimely EEO Counselor contact. Regarding claim (d), the
agency concluded that the alleged discriminatory event occurred on April
25, 2000, but that complainant did not initiate EEO Counselor contact
until April 16, 2001, beyond the forty-five-day limitation period.
The record reflects that on March 29, 2000, the agency and eleven
employees resolved the employees' complaints by entering into a negotiated
settlement agreement which provided, in pertinent part, that complainant
would be re-assigned to another Business Center within 21 days following
the execution of the agreement. The record also reflects that the
eleven employees and complainant did not get along in the work place;
and that as a consequence complainant was reassigned to CWC 725 in
April 2000, as discussed above. Furthermore, the record reveals that
complainant returned to CWC 741 in August 2002 as a result of an union
grievance resolution.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On July 10, 2003, the AJ issued a Notice of Intent to Issue
a Decision Without a Hearing, allowing the parties to file a written
response to the Notice. The record reveals that only the agency responded
by submitting its Motion for Findings and Conclusions Without a Hearing.
In its motion, the agency urged the AJ to issue a decision without a
hearing in favor of the agency, finding no discrimination. The agency
further argued that management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were pretextual.
Specifically, the agency argued that complainant was transferred from
CWC 741 to CWC 725 pursuant to the March 29, 2000 settlement agreement in
resolution of the complaints filed by other agency employees. The agency
argued that it made perfect business sense to transfer complainant to
another CWC, rather than to transfer eleven other employees. The agency
argued that complainant was not aggrieved in that he did not suffer
any personal harm as a result of management's decision. While the
agency acknowledged that it may or may not have been the wisest way to
resolve this particular issue, complainant failed to demonstrate that
its decision to transfer him from one CWC to CWC was nothing more than
a business decision without discriminatory motive.
As to complainant's disability claim, the agency argued that complainant
was not an individual with a disability, as he produced no evidence that
his conditions substantially impaired any major life activity. The agency
further argued that complainant's desire to work as a machinist rather
than as a mechanic could not be construed as a request for a reasonable
accommodation, even if complainant were considered an individual with
a disability. <1>
Claims (a) - (c)
Regarding claim (a), the agency noted in his declaration, complainant's
Supervisor (S1) stated that he was not aware why complainant �was put in
my section it was an upper management decision on why he was put in CWC
725. His duties were to be a machinist.� The S1 further stated that on
April 11, 2001, he informed complainant that he did not have enough work
for a full-time machinist, and that he would like complainant �to help
some of the mechanics when was not doing machinist work.� The S1 stated
that complainant mentioned that he could not provide such assistance
because of his medical limitations; and that when he asked complainant
what his medical limitations were, and complainant answered that �his
elbows would hurt.� Furthermore, the S1 stated that he did not tell
complainant that he would only be working as a mechanic in his section;
and that he informed complainant that he would be �a Machinist/Mechanic
in CWC 725.� The agency also noted in his declaration, complainant's
third level supervisor (S3) stated that he believed complainant was
instructed to work as a machinist, and then assist other mechanics.
Regarding claim (b), the S1 stated that he informed complainant that he
was going to change his standards to Machinist/Mechanic because he did
not have enough work for a full-time machinist in his section. The S1
also stated �supervisors set all performance standards on all employees.�
Regarding claim (c), the S1 stated that from the date of complainant's
arrival (April 25, 2000) to April 11, 2001, complainant worked as
a machinist. The S1 further stated that following April 11, 2001,
complainant was a machinist/mechanic. With respect to complainant's
denial of transfer claim, the S1 stated while complainant started
submitting his requests to be returned to CWC 741, he did not understand
why complainant's requests to be transferred were denied. The S1 further
stated that complainant was returned to CWC 741 on July 21, 2002 as a
result of his grievance.
With respect to complainant's disability claim, the S1 stated that
complainant made no reasonable accommodation requests to perform the
duties as a mechanic. The S1 further stated that he provided complainant
with a machine shop, because he was a machinist. The S3 stated that
complainant informed him that the mechanic duties required him to work
outside of his medical limitations; and that he believed complainant
showed him his physician's notes related to his medical restrictions
(no repetitive forceful twisting or gripping). The S3 further stated
�we told [Complainant] to work within his limitations.�
On July 31, 2003, the AJ granted the agency's motion to dismiss. The AJ
determined that the agency properly set forth the undisputed facts and
applicable law and incorporated the Motion in her decision finding no
discrimination.
The agency's final order, dated September 10, 2003, implemented the
AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's final order implementing the AJ's decision
finding no discrimination concerning claims (a) - (c) was proper and
is AFFIRMED.
Claim (d)
With respect to claim (d), complainant alleged that he was discriminated
against on the bases of race and disability when on April 25, 2000,
he was misled into accepting a temporary detail to CWC 725. In a
partial dismissal dated July 9, 2002, the agency dismissed claim (d)
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO
Counselor contact. As the agency has issued a final order implementing
the AJ's decision on the remaining claims (claims (a) - (c)), this claim
is now ripe for adjudication.
A review of the record reveals that the alleged discriminatory event
occurred on April 25, 2000, but that complainant did not initiate
contact with an EEO Counselor until April 16, 2001, which is beyond the
forty-five-day limitation period. On appeal, complainant has presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact.
Accordingly, the agency's decision to dismiss claim (d) for untimely
EEO Counselor contact was proper and is AFFIRMED.
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
March 11, 2005
__________________
Date
1The Commission presumes for purposes of
analysis only, and without so finding, that complainant is an individual
with a disability.