Bruce D. Whitson, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 15, 2010
0120102567 (E.E.O.C. Oct. 15, 2010)

0120102567

10-15-2010

Bruce D. Whitson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Bruce D. Whitson,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120102567

Hearing No. 450-2009-00292X

Agency No. ARRRAD08JUN02376

DECISION

On May 27, 2010, Complainant filed an appeal from the Agency's April 26, 2010 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.

BACKGROUND

During the relevant period, Complainant worked as a Mechanic for a contractor of the Agency at its Red River Army Depot, Texas. Complainant applied for a position as a Rubber Worker (WG-4301-07) with the Agency at the same depot. The position was full-time, temporary/not-to-exceed one day, one year. On March 17, 2008, the Agency tentatively hired Complainant for the Rubber Worker position, pending successful completion of a medical examination by a private contractor, Ark-La-Tex Health Center Inc. (ALTHC). Complainant reported for the examination, at which time he informed the ALTHC nurse practitioner that he takes Xanax, Methadone, Vicodin and Soma medications. Subsequently, the nurse practitioner advised the Agency to "take action to separate or do not hire" Complainant due to use of strong and dangerous medications that result in high risk of side effects. The nurse practitioner also noted a need for close monitoring of Complainant's blood pressure and cholesterol, as well as his history of panic attacks. The Agency withdrew its selection of Complainant on March 27, 2008 and; subsequently, placed three males, who self-identified as "[without] handicap," in WG-4301-07 Rubber Worker positions.

Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Anxiety/Depression and High Blood Pressure) when it medically disqualified him from the Rubber Worker position following his tentative selection.

The Agency conducted an investigation of Complainant's claim, and then provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former and the assigned AJ held a hearing on the matter. The AJ issued a decision, dated March 5, 02010, finding discrimination. Specifically, the AJ stated; "While Complainant did not have a disability, the Agency regarded him as having an impairment which substantially limits the major life activity of working . . . and, based upon that belief, the Agency decided to disqualify and not hire [him]." The AJ noted that neither the Agency nor ALTHC produced guidelines indicating what medications disqualified individuals from Agency employment and their testimony was not credible as to this issue, and the Agency viewed Complainant as a safety threat to himself and others and failed to conduct the required individualized assessment. The AJ found Complainant "qualified" as he worked in a similar position as a Mechanic at the same facility with great evaluations from his contractor supervisor.

As a remedy, the AJ ordered the Agency to pay Complainant $1,500 in non-pecuniary compensatory damages; offer Complainant the Rubber Worker or substantially equivalent position at the Agency; determine the appropriate amount of back pay, with interest, and all benefits due Complainant pursuant to 29 C.F.R. � 1614.501 (using the date Complainant would have started employment as a Rubber Worker as the benefit date); conduct at least four hours of training for all Agency Human Resources and Medical personnel at the facility-at-issue regarding the Agency's responsibilities and obligations under the Rehabilitation Act; and post notice of a finding of discrimination at the Red River facility.

The Agency subsequently issued a final order fully implementing the AJ's finding of discrimination and ordering remedial relief. The instant appeal from Complainant followed. On appeal, Complainant stated that the Agency offered him two jobs (one at the Rubber Plant and another as a Painter's Helper), but only offered him a not-to-exceed one day, one year appointment without possibility of permanent appointment. Complainant added that everyone who worked for the rubber plant at the time when his position was rescinded has been made permanent, and that a lot of nepotism and favoritism goes into their hiring.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.

Neither party challenges the AJ's finding of discrimination or awarded remedy. The matter before us is whether the Agency offered to make Complainant whole as to his retroactive placement.

When discrimination is found, the agency must provide the complainant with an equitable remedy that constitutes full, make-whole relief to restore him/her as nearly as possible to the position s/he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission notes that we recognize that precise measurement cannot always be used to reduce the wrong inflicted; nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990).

We agree with the relief awarded by the AJ. We find that retroactive reinstatement in a comparable position for the same appointment length is an appropriate remedy to address the rescission of Complainant's offer. Complainant stated that the Agency offered him a position as a Rubber Worker for one year and one day, which is the length of time for the underlying appointment. Complainant added that most people who hold temporary positions with the facility have received permanent appointments. However, we find that Complainant failed to produce evidence to support his contention on appeal. Hence, we AFFIRM the final agency decision and reiterate the AJ's provision as to reinstatement below.

ORDER

In accordance with the AJ's decision and the decision above, the Agency shall take the following remedial actions:

Within 30 calendar days of the date this decision becomes final, the Agency shall offer Complainant the position of Rubber Worker or a substantially equivalent position at the Agency's Red River Depot. Complainant shall have 15 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless the complainant can show that circumstances beyond his control prevented a timely response.

To the extent that other remedies awarded by the AJ are affected by the above provision, the Agency shall act accordingly.

The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective actions have been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC 20013. 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 (M0610)

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), at 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 77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

___October 15, 2010_______

Date

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0120102567

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120102567