Lawrence A. Griffin, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 11, 2007
0120061939 (E.E.O.C. Apr. 11, 2007)

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