01973163
03-26-1999
Jimmy S. Pollock, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jimmy S. Pollock v. Department of the Navy
01973163
March 26, 1999
Jimmy S. Pollock, )
Appellant, )
) Appeal No. 01973163
v. ) Agency No. DON-96-65923-020
) Hearing No. 140-96-8153X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of reprisal (prior EEO activity),
and physical and mental disability (Carpel Tunnel Syndrome, hearing
loss and Post-Traumatic Stress Disorder (PTSD)), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq. Appellant alleges he was discriminated against when: (1) he was
offered the permanent job of Equipment Specialist (Aircraft), GS-1670-07,
Position Description No. MMN9839, which allegedly did not accommodate
his disabilities; and (2) his sick leave requests for July 25 and 26,
1995, were disapproved. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
The record reveals that appellant, an Equipment Specialist (Aircraft), at
the agency's Naval Aviation Depot at Cherry Point, NC, filed a formal EEO
complaint with the agency on November 10, 1995, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
In her decision, the AJ found that appellant was employed by the agency
as a Sheet Metal Worker, Aircraft, SG-3806-08, Shop 95700. Beginning
on or about April 19, 1993, the agency detailed appellant into the
Equipment Specialist position due to medical restrictions caused by his
Carpel Tunnel Syndrome. The AJ noted that the record contained medical
documentation which demonstrated that appellant suffers from pain, as
well as tightening and numbness in his hands, which are a result of the
Carpel Tunnel Syndrome. As such, appellant's medical restrictions state
that appellant should not operate vibrating tools, should not engage in
repetitive use of his hands, and should not lift more than 25 lbs.
By letter dated April 26, 1995, the agency's Employee Program
Administrator (Administrator) wrote to appellant's physician, advising him
of the agency's intention to place appellant into the Equipment Specialist
position on a permanent basis, and requested information as to whether
appellant could perform the duties of the position because of his Carpel
Tunnel Syndrome. The Administrator also requested that the Selective
Placement Coordinator (Coordinator) prepare a letter to appellant
permanently offering him the job of Equipment Specialist due to his
inability to perform the duties of a Sheet Metal Worker. The Coordinator
testified that she then examined the initial qualifications determination,
which had been drafted when appellant was initially detailed into the
Equipment Specialist position in 1993, and examined appellant's light
duty request from November 1, 1993, which stated appellant could not
operate vibrating tools. Based upon her review of the documents, the
Coordinator determined appellant was qualified to perform the duties of
the Equipment Specialist position, and drafted the Job Placement Offer
dated July 24, 1995.
During a meeting held between agency officials and appellant on July 24,
1995, the agency offered appellant the Equipment Specialist position.
In the permanent job offer to appellant, the agency referenced available
medical documentation which indicated appellant suffers from a medical
condition which prevents him from performing the duties of a Sheet Metal
Worker.
The AJ found that appellant was absent from work on July 25 and 26,
1995, and called in sick on July 25, 1995. On July 27, 1995, appellant
returned to work and requested sick leave for the prior two days "due to
job stress." Appellant's supervisor testified that he asked appellant if
he was under a doctor's care for the job stress, and whether he could get
a doctor to sign the leave slip. Appellant's supervisor also testified
that appellant provided a doctor's note, but did not indicate that he
was under a doctor's care for stress. Furthermore, appellant would not
allow the supervisor to photocopy the doctor's note. The supervisor also
testified that the Branch Head had stated that medical documentation was
required for job stress. As such, the supervisor told appellant that
he could not approve sick leave based on job stress unless he provided
appropriate medical documentation. However, the supervisor testified
that since appellant had already been placed on sick leave for those
dates, he did not change the status.
On August 9, 1995, a second meeting was held with appellant regarding
his permanent position. The Division Director testified that during
the meeting, appellant brought up for the first time that he also had
a hearing loss. The Division Director testified that he explained that
the job offer was based on appellant's then known medical documentation,
and that if he produced medical documentation of a hearing loss, the
agency would consider an accommodation.
By letter dated August 5, 1995, appellant's attorney submitted a
letter to the Coordinator stating that, without waiving any rights,
appellant accepted the job offer. However, the letter also stated
that the position did not accommodate appellant because: (1) it did not
accommodate appellant's documented hearing loss; (2) although appellant's
medical restrictions fell within the job description for the position,
the actual work involved required lifting greater weights, which required
appellant to be placed in the awkward position of asking for assistance;
and (3) the job did not accommodate appellant's need to avoid shift
rotation or overtime assignments, which are necessary due to his PTSD.
Appellant subsequently signed the job offer on October 3, 1995.
In her decision, the AJ found that the record contained medical evidence
only for the Carpel Tunnel Syndrome, which the AJ found substantially
limited one or more of appellant's major life activities. However, the
AJ also found that appellant had not produced medical evidence of either
the hearing loss or PTSD, had not shown that either of those impairments
substantially limited major life activities, and had failed to show
that the agency had regarded him as being disabled with respect to those
impairments. Thus, the AJ found that appellant was a qualified individual
with a disability only with respect to the Carpel Tunnel Syndrome.
The AJ then found that the agency had provided appellant with a reasonable
accommodation for his known disability of Carpel Tunnel Syndrome, by
placing appellant into the Equipment Specialist position, which met his
job restrictions and provided him with assistance when he needed it.
The AJ also found that since appellant had failed to show that he was
disabled by his hearing loss and his PTSD, the agency was not required to
accommodate him. Assuming the hearing loss and PTSD rose to the level of
a disability, the AJ found that appellant had failed to produce evidence
that he had requested accommodations for these impairments prior to the
time that the agency offered him the permanent position. Furthermore,
once appellant advised the agency of his other conditions, the agency
was permitted to request such medical documentation. In sum, the AJ
found appellant had failed to prove that the agency had discriminated
against him when it denied him a reasonable accommodation.
With respect to his allegation that he was denied sick leave on July 25
and 26, 1995, the AJ found that appellant had failed to produce evidence
that he suffered from a disability related to "job stress." Even
assuming that his request for leave for job stress could be considered a
request for an accommodation, the AJ found that the agency acted properly
when it requested medical documentation. Finally, the AJ found appellant
had not suffered any harm since he received sick leave for the two days
in question.
On February 2, 1997, the agency issued a FAD adopting the AJ"s finding of
no discrimination. In addition, the agency noted that the AJ had failed
to discuss appellant's reprisal claim. In its FAD, the agency found that
appellant had failed to show that the named agency officials were aware of
appellant's prior EEO activity when it took the aforementioned actions.
As such, the agency found that appellant was not discriminated against
on the bases of reprisal or disability. It is from this decision that
appellant appeals. However, appellant raises no contentions on appeal,
and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to
present evidence that any of the agency's actions were in retaliation
for appellant's prior EEO activity or were motivated by discriminatory
animus towards appellant's disabilities. We further note that appellant
failed to present any evidence or argument on appeal, and find the record
contains insufficient evidence that he requested an accommodation for his
hearing loss or PTSD. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
March 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations