01A11811
07-13-2001
James E. Robinson, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
James E. Robinson v. Department of the Army
01A11811
July 13, 2001
.
James E. Robinson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A11811
Agency No. ATL-99-AR-0078-E
Hearing No. 140-99-8194X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.<1>
Complainant alleged discrimination based on race (African-American)
and disability (shoulder injury and hearing loss) when, on March 31,
1998, the agency failed to accommodate his disability by offering him
a Small Engine Worker, WG-8610, position.
Background
Complainant filed a formal EEO complaint raising the issue stated
above. The complaint was investigated and complainant requested a hearing
before an EEOC administrative judge (AJ). On June 28, 2000, the AJ issued
a Notice of Intent to Issue Findings and Conclusions Without a Hearing
(the Notice). Complainant submitted an objection to the Notice and the
agency did not object. The AJ issued a decision (the RD) without a hearing
which found that complainant was not discriminated against on the bases
of disability or race. The AJ noted in the RD that she was only deciding
the issue of whether the agency reasonably accommodated complainant,
not the issue of whether complainant was forced to retire. Thereafter,
the agency issued a final order which adopted the findings of the AJ.
Complainant now appeals the final order.
The record shows that on March 4, 1997, complainant, who worked for
the agency as a Heavy Mobile Equipment Mechanic (the Mechanic Position)
was diagnosed with�arthritis of the right shoulder as well as limited
external arthritic degeneration of his right shoulder.� Complainant's
restrictions, according to his physician, were quite possibly permanent.
The restrictions were: �(1) the patient should avoid objects weighing
greater than 25 pounds and pulling or pushing objects that weigh more
than 50 pounds; and, (2) the patient should avoid overhead activity with
respect to extended time periods or weights greater than 25 pounds.�
By complainant�s own admission, he could not continue to perform the
duties of the Mechanic position because of his physical limitations.
On April 21, 1997, the agency detailed complainant to the Organizational
Maintenance Section (OMS) to perform administrative duties. On February 4,
1998, another physician examined complainant and concluded that he would
not be able to perform the duties of the Mechanic position due to his
continuing shoulder problems. On March 13, 1998, the agency's Director,
Resource Management (the Director) released a memorandum identifying
March 31, 1998 as the expiration date for VERA retirements. On March
31, 1998, the Chief, Transportation/Maintenance Division (the Chief)
contacted complainant and informed him that the Directorate of Logistics
(the Directorate) was proposing his removal from the Mechanic position
due to his inability to perform its duties. The Chief also informed
complainant that the DOL would approve his retirement with a VSIP bonus
of $25,000 if he were interested. On March 31, 1998, complainant effected
his retirement under VERA.
The AJ initially found that complainant showed that he was a disabled
individual under the Rehabilitation Act by virtue of his shoulder
impairment. However, the AJ found that complainant failed to show that
he was a qualified individual with a disability. In this regard, the
AJ concluded that complainant could not perform the essential functions
of the Mechanic position and that there were no appropriate positions to
which complainant could be assigned. The AJ found that an SWE position
was not vacant when complainant retired on March 31, 1998 and that, in
any case, complainant could not perform the essential functions of the
SWE position because the duties included being able to lift and carry
up to 40 to 50 pounds. In addition, the AJ concluded that the agency
made appropriate efforts to find complainant another position within
his physical restrictions.
Concerning complainant's race claim, the AJ found that complainant
failed to show that there were similarly situated White employee(s)
who were treated more favorably under essentially the same circumstances.
Analysis and Findings
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 does not
sit as a fact finder. Id. 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. A disputed 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, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st. Cir. 1988). A fact is �material� if it has the potential
to affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After carefully reviewing the record, we find that the AJ improperly
found that there were no genuine issues of material fact in this case.
We find several such issues which have the potential to affect the outcome
of complainant's case. First, we find that there is a genuine issue of
material fact as to whether complainant could have been accommodated in
the SWE position. While one official duty requirement of the SWE position
was being able to lift up to fifty (50) pounds, the Chief testified
that E-1, who had a kidney transplant, was possibly accommodated with
regard to lifting heavier object.<2> We note as well that testimony
was provided that there was actually very little heavy lifting in the
SWE position. This conflicting evidence must be weighed by the AJ and
the record must be further developed regarding these issues if necessary.
We find that there is also conflicting evidence as to whether an SWE
position was available, or would soon be available, when complainant
retired on March 31,1998, Specifically, the record shows that on March
31, 1998, an individual (E-1) working as an SWE, executed a Statement
of Understanding to retire on April 30, 1998. In addition, around late
April 1998, an individual (E-2) was granted reassignment, effective June
21, 1998, to the vacant SWE position. We note also that complainant's
first line supervisor testified that he knew of E-1's pending retirement
a few weeks before March 31, 1998.
We also find that there is some question as to whether appropriate
actions were taken to locate another position for complainant after his
detail to the OMS expired. While an agency personnel official testified,
generally, that the agency tried to find complainant a position, there
are no official documents in the record regarding what specific efforts
were made or what the results of these efforts were. In addition, the
agency's Civilian Personnel Director (the Director) testified that she
could not recall receiving an official request for a position search
for complainant.<3>
Finally, regarding complainant's claim of race discrimination,
complainant's first-level supervisor testified that he strongly
believed that E-2 was treated more favorably than complainant because
of complainant's race.<4> In addition, other witnesses testified that
there were racial problems at the agency which had an impact on how some
Black employees, including complainant, were treated.
In short, we find that there is conflicting evidence on a number of issues
which have the potential to affect the outcome of the case. Therefore,
judgment as a matter of law should not have been granted.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ordered to submit a request to the Hearings Unit of the
San Antonio District Office for scheduling of a hearing. The agency is
also directed to submit a copy of the complaint file to the EEOC Hearings
Unit within 30 calendar days of the date this decision becomes final.The
agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
July 13, 2001
__________________
Date
1 Commission records show that the Commission
first received correspondence related to complainant's appeal on
January 13, 2001. However, the agency has advised the Commission that
it received a copy of complainant's Commission appeal on December 20,
2000 and Commission records show that the agency thereafter forwarded
the case file to the Commission. Given this information, the Commission
will accept complainant's appeal.
2 See Transcript from Fact Finding Conference, pgs, 102-102.
3 See Transcript from Fact Finding Conference, pg. 318.
4 See Transcript of Fact Finding Conference, p. 74.