Edward B. Hayes, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a40069 (E.E.O.C. Mar. 11, 2005)

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.