0120061939
04-11-2007
Lawrence A. Griffin, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Lawrence A. Griffin,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200619391
Agency No. 05-00259-00281
DECISION
Complainant appeals to the Commission from the agency's decision dated
December 16, 2005, finding no discrimination. In his complaint,
complainant, a Health Systems Specialist/Contracting Officer's
Representative (COR), GS-0672-11, in the agency's Clinical Operations
Department of the Director for Healthcare Operations and Planning of
the Naval Medical Center San Diego (NMCSD), alleged discrimination
based on race (Hispanic), sex (male), disability (Attention Deficit
Hyperactivity Disorder), and in reprisal for prior EEO activity when:
(1) from approximately August 23, 2003 to January 23, 2005, he was
required to perform GS-12 duties while being paid GS-11 wages; and (2)
since May 31, 2003, he has not received regular performance evaluations
and his standards were not set for 2005.
After completion of the investigation of the complaint, complainant did
not request a hearing. Thus, the agency issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its actions,
which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the alleged actions. With regard to claim (1), complainant's supervisor
denied assigning or requiring complainant to perform GS-12 level duties.
He maintained that complainant sometimes assumed additional duties and
asked to perform certain duties. The agency Human Resource Specialist
(HRS) concurring with the supervisor stated that while complainant
performed similar work to that performed by two GS-12 level coworkers,
it was not GS-12 level work. The supervisor stated that after learning
of complainant's concerns regarding his position, he made a decision
to write a new position description for the GS-12 level and have all of
the CORs assigned to the same position description. He explained that
after three drafts, the Position Management Board (PMB) finally approved
the position description for the GS-0672-12 position in December 2004.
Since complainant was hired on a GS-11 position description with no
promotional potential, he had to compete for the GS-12 position at issue.
The supervisor stated that he used the Management Identification of
Candidates process and selected complainant for the GS-12 position on
January 23, 2005.
With regard to claim (2), the supervisor stated that he had not done
closeout ratings or set performance standards for complainant as well as
two coworkers because of his duties as a clinically active Intensive Care
Physician, which interrupted his administrative duties for more than a
week at a time. He maintained that he relied on his assistant to take
care of much of the administrative work, but the assistant failed to
do so. The HRS stated that if an employee did not receive a performance
evaluation, performance was automatically rated as "pass" on "pass/fail"
scale. The two GS-12 level coworkers stated that the supervisor also
had not given them a close-out rating nor set new standards when they
were reassigned to the new position description.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that he
was denied a reasonable accommodation or that any agency actions were
motivated by discrimination. Complainant does not allege that he was
required to perform his duties beyond his medical restrictions.
Accordingly, the agency's decision finding no discrimination 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
April 11, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120061939
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036