0120093256_0120111968
02-20-2015
Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal Nos. 0120093256 & 0120111968
Agency Nos. 01062009018 & 04142008022
DECISION
On October 31, 2008, and August 10, 2009, Complainant filed appeals from the Agency's October 3, 2008 and September 3, 2009, final decisions concerning his equal employment opportunity (EEO) complaints 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. We find that the complaints contain similar allegations of discrimination, and therefore they will be consolidated and processed together pursuant to 29 C.F.R. � 1614.606. The Commission deems the appeals timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a journeyman electrician with the Agency's Power Systems Operations ("PSO") Group, Transmission Operations and Maintenance ("TOM") Organization, at the Watts Bar Nuclear Plant near Chattanooga, Tennessee. Since 1983 or 1984, Complainant has been completely blind in his left eye due to a detached retina, and as a result has monocular vision. Complainant's impairment is obvious to his managers and coworkers because he wears a shell over his left eye.
The Agency requires employees in the electrician and the electrician foreman positions to possess and maintain a seven-state Class B Commercial Driver's license (CDL) pursuant to Department of Transportation (DOT) Regulations found at 49 C.F.R. � 383. These regulations require individuals to pass a S5 medical examination which requires, amongst other things, binocular vision (vision in both eyes). Complainant's vision impairment makes him unable to pass the S5 medical examination, and therefore Complainant was unable to obtain a Class B CDL pursuant to DOT regulations.
The Agency voluntarily adopted DOT Regulations found at 49 C.F.R. � 383 through the TVA Safety Procedure (TVASP) No. 610, which states that effective April 16, 2004, employees who cannot obtain or lose their seven-state CDL required by the Agency as an essential function of their job will have six (6) months to obtain or re-obtain their CDL, or else they must pursue employment alternatives and/or may be terminated. The TVASP-610 also states that employees who are unable to maintain a CDL due to a medical condition prior to April 16, 2004, will be "grandfathered" in as long as they stay in their permanent position as of April 16, 2004.
On July 22, 2004, the Agency notified Complainant that not withstanding his inability to obtain a CDL and perform the essential functions of his position because of his vision impairment, he would be "grandfathered" into his permanent position as a journeyman electrician at the Watts Bar Nuclear Plant in accordance with the provisions of TVASP-610. The Agency also notified Complainant that it would continue to make "adjustments to [Complainant's] work assignments" as long as he is in this position.
Complainant was permitted to serve as a dual-rate foreman1 on numerous occasions between July 22, 2004 and December 13, 2007. On December 14, 2007, the Transmission Service Manager notified Complainant that he would no longer be permitted to serve as a dual-rate foreman because the "grandfathering" provision of the TVASP-610 restricted Complainant to his permanent position as an electrician. Additionally, the Agency asserts that Complainant's inability to obtain a seven-state CDL resulted in him not being able to perform the essential functions of the dual-rate foreman positions because foremen must be able to respond to emergency situations 24 hours per day and may be required to transport Commercial Motor Vehicles across state lines to the emergency site.
On April 1, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (blind in left eye) when:
1. Between December 13, 2007, through the present, he was not allowed to work as a dual-rate foreman on several occasions; and
2. On or about April 12 and 13, 2008, he was not allowed to travel to Sequoyah Nuclear Plant in support of a breaker rebuild.2
At the conclusion of the investigation, the Agency 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) on September 30, 2008. The decision concluded that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On December 5, 2008, Complainant requested a reasonable accommodation. Specifically, Complainant requested an accommodation in the form of a waiver of the S5 medical examination requirement for binocular vision, or vision in both eyes. The Agency never responded to this request.
On December 9, 2008, Complainant learned that the Area Operations Manager inquired to Human Resources about Complainant filling the permanent electrician foreman position once Complainant's supervisor retired, and stated that Complainant was the most qualified for the position. Subsequently, Complainant applied for the position and his supervisor sent a packet to Human Resources for Complainant to be interviewed for the position. Despite this, Complainant was never interviewed for the position. On or around February 4, 2009, Complainant learned that he was not selected for the permanent electrician foreman position. The Agency stated that Complainant was not selected for the position because he did not have a seven-state CDL and did not pass the S5 medical exam in conformance with DOT regulations. After Complainant learned he was not selected for the position, numerous management officials told Complainant that they did not think the decision was fair.
On January 6, 2009, Complainant filed another EEO complaint alleging that the Agency discriminated against him on the basis of his disability (blind in left eye) when:
1. On October 31, 2008, and December 1- 4, 2008, he was not allowed to work as a dual-rate foreman at the Watts Bar Nuclear Plant;
2. On or about November 24, 2008, he was not selected for a position as an electrician in Knoxville, Tennessee;3 and
3. On or about February 4, 2009, he was not selected for a permanent electrician foreman position.4
At the conclusion of the investigation, the Agency 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) on July 10, 2009. The decision concluded that Complainant was not a qualified individual with a disability, and Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed both final agency decisions to the Commission. We have consolidated the appeals and will address them below.
CONTENTIONS ON APPEAL
Complainant asserts that the Agency erred in the first final agency decision because it did not analyze Complainant's claims as a failure to reasonably accommodate his disability. Complainant also asserts that the Agency should have waived the CDL requirement because it was not an essential function of the foremen positions. The Agency asserts on appeal that Complainant never requested a reasonable accommodation for the issues concerning the first complaint. Further, the Agency contends that Complainant is not a qualified individual with a disability because he could not perform the essential functions of the foreman positions.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Reasonable Accommodation
Did Complainant Request a Reasonable Accommodation?
The Agency asserts that while Complainant requested a reasonable accommodation on December 5, 2008, Complainant did not request a reasonable accommodation in the issues underlying the first complaint. The Agency is reminded, however, that under the Rehabilitation Act, an employee is not required to use the "magic" words "reasonable accommodation" when making a request. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.l. Instead, the employee or the employee's representative need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. United States Postal Service, EEOC Appeal No. 01A44720 (Feb. 24. 2006).
With regard to the issues underlying the first complaint, we note that while Complainant stated in response to a question in his sworn statement that he never requested a reasonable accommodation, he also indicated that he did not understand the question. The record contains several instances where management officials and human resources officials should have been on notice that Complainant was seeking a reasonable accommodation. For example, Complainant stated on numerous occasions that except for the requirement that he have a seven-state CDL and pass the S5 medical examination, his impairment has not affected his ability to perform the functions of the foreman5 position and he was never required to drive a Commercial Motor Vehicle when he served as a foreman. Further, Complainant stated on numerous occasions that the requirement to have a CDL and pass the S5 medical examination were not essential functions of the foreman position, and therefore he should be allowed to serve as a foreman. Additionally, the Agency had knowledge of Complainant's impairment and his need for an accommodation when it provided Complainant with a reasonable accommodation in his journeyman electrician position by making adjustments to his work assignments so he would not have to drive a Commercial Motor Vehicle. Therefore, we find that a reasonable accommodation analysis should be applied to the issues underlying both complaints.
Is Complainant an Individual With a Disability?
The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(c) and (p). In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Here, the Agency does not dispute that Complainant's impairment substantially limits a major life activity, and therefore we find that Complainant is an individual with a disability.
Is Complainant Qualified for the Foreman Position?
Next, Complainant must establish that he is a "qualified individual with a disability." 29 C.F.R. � 1630.2(m). A "qualified individual with a disability" is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of such position. Id. We note that in the final decision for the first complaint the Agency found that Complainant is a qualified individual with a disability. However, in the second final decision the Agency contradicted itself and found that Complainant was not qualified.
A review of the record reveals that Complainant met all of the Agency's job requirements for the foreman position except for its requirement that his vision conform to the requirements set forth in the DOT regulations. Complainant's supervisor, the Transmission Service Manager, and the Area Operations Manager all stated that Complainant could perform the functions of the foreman position.
The key question then is whether the vision standard that the Complainant failed, or the manner in which the Agency applied the vision standard to Complainant, is consistent with the requirements of the Rehabilitation Act. Nathan v. Dep't of Justice, EEOC Appeal No. 0720070014 (July 19, 2013). If the standard itself fails to meet the "job-related and consistent with business necessity" requirement, or if the Agency failed to apply the standard in an appropriate way (for example, by failing to determine whether performance could be achieved through reasonable accommodation) the Complainant has a valid claim. Id.
Is the Agency's Vision Standard Job-Related and Consistent with Business Necessity?
The Rehabilitation Act prohibits a covered entity from engaging in discrimination against a qualified individual on the basis of disability in, among other things, hiring. 42 U.S.C. � 12112(a). Such discrimination includes "using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability ... unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity. Id. � 12112(b)(6); see also 29 C.F.R. � 1630.10 (making unlawful a covered entity's use of qualification standards that screen out or tend to screen out an individual with a disability unless such standard is job related and consistent with business necessity).
The term "qualification standard" is not defined in the statute. The regulations define "qualification standard" as "the personal and professional attributes, including the skill, experience, education, physical, medical, safety, and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired." 29 C.F.R. � 1630.2(q). The regulations also note that vision standards based on uncorrected vision are acceptable under the Act if a covered entity can establish that such standards are job related and consistent with business necessity. 29 C.F.R. � 1630.10(b).
The Commission's regulations provide that an Agency can meet the "job related and consistent with business necessity" standard by showing that the requirement, as applied to the individual, satisfies the "direct threat" analysis set forth in 29 C.F.R. � 1630.2(r). 29 C.F.R. 1630 App. 1630.15(b) and (c).
A person is a "direct threat" if he or she poses a significant risk of substantial harm to the health or safety of him or herself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. 29 C.F.R. � 1630.2(r). The "direct threat" evaluation must be based on an individualized assessment of the individual's present ability to perform the essential functions of the job. Id. If no such accommodation exists, the Agency may refuse to hire an applicant. Id. In the instant matter, the Agency must demonstrate that its decision to discontinue the hiring process of Complainant, due to his failure to obtain his Class B CDL because he does not have binocular vision, satisfies the "direct threat" standard. Therefore, we must analyze whether the Agency has satisfied its burden of proof to establish that Complainant posed a direct threat to safety. See Spencer v. Department of Treasury, EEOC Appeal No. 07A10035 (May 6, 2003).
In order to exclude an individual on the basis of possible future injury, the Agency bears the burden of showing there is a significant risk, for example, a high probability of substantial harm. Nathan, supra. A speculative or remote risk is insufficient. Id. The Agency must show more than an individual with a disability seeking employment stands some slightly increased risk of harm. Selix v. United States Postal Service, EEOC Appeal No. 01970153 (Mar. 16, 2000).
Such a finding must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. 29 C.F.R. � 1630.2(r). See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); Cook v. State of Rhode Island, Department of Mental Health Retardation and Hospitals, 10 F.3d 17 (1st Cir. 1993). A determination of significant risk cannot be based merely on an employer's subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the Agency must gather information and base its decision on substantial information regarding the individual's work and medical history. Chevron U.S.A. Inc. v. Echazabal, supra; Harrison v. Department of Justice, EEOC Appeal No. 01A03948 (July 30, 2003).
The Agency asserts that it is bound by the vision standards in the DOT regulations. Here, the record shows that the Agency voluntarily adopted the DOT regulations. The Commission has previously held that an Agency cannot depend solely on the DOT regulations at issue in this complaint to determine that an individual is not qualified for a position, and the Agency must conduct an individualized assessment of the individual to determine if they pose a direct threat. See Surprenant v. United States Postal Service, EEOC Appeal No. 01996186 (July 27, 2001) (Finding that an individualized assessment is necessary when an Agency voluntarily adopts the DOT regulations). A federal agency is not required to comply with the DOT regulations at issue in this complaint because, under 49 C.F.R. � 390.3(f)(2), these regulations do not apply to transportation performed by the Federal government or any Agency established under a compact between States that has been approved by Congress. See Ganson v. United States Postal Service, EEOC Appeal No. 01A01214 (Feb. 12, 2004) (The Agency erred when it did not conduct an individualized assessment of Complainant and relied solely on DOT regulations to find that Complainant could not drive Commercial Motor Vehicles); Masteller v. United States Postal Service, EEOC Appeal NO. 01994458 (February 12, 2004) (An Agency must conduct an individualized assessment of an employee instead of only relying on DOT regulations). Therefore, relief from the DOT regulations adopted by the Agency is solely within the Agency's authority. Id.
In Boots v. U.S. Postal Service, the Commission found that the Agency violated the Rehabilitation Act when it did not conduct an individualized assessment and relied solely on DOT regulations (the same regulations at issue in this complaint) to remove Complainant from his Tractor Trailer Operator position because he took anti-seizure medication. Boots, EEOC Petition No. 03A40060 (Dec. 13, 2004). A Special Panel of the Merit Systems Protection Board upheld the Commission's decision in Boots and found that federal agencies, unlike private employers, are not bound by these specific DOT regulations, and the Agency did not make a good faith effort to reasonably accommodate the employee when it deferred to the DOT regulations without conducting an individualized assessment of Complainant's disability. Boots v. U.S. Postal Service, 105 M.S.P.R. 500 (April 13, 2007).
Here, we find that the Agency failed to conduct an individualized assessment of Complainant to determine if he is qualified for the position. There is nothing in the record that would indicate that the Agency considered whether the Complainant's impairment posed a direct threat before it decided to not allow him to serve as a foreman or it decided to not select him for the permanent foreman position. Instead, the record reflects that the Agency relied solely on the DOT regulations to determine that Complainant was not able to drive Commercial Motor Vehicles.
Complainant's supervisor stated that there was never an individualized assessment comparing Complainant's limitations with the functions of the foreman job. The record indicates that Complainant was able to drive Commercial Motor Vehicles without posing a safety risk to himself or to others because he was able to obtain a Tennessee CDL which allows him to drive Commercial Motor Vehicles intrastate. Further, Complainant's supervisor, the Transmission Service Manager, and the Area Operations Manager all stated in their sworn statements that there were no safety concerns with Complainant working as a foreman. The Commission therefore determines that the Agency failed to conduct the required individualized assessment of Complainant's impairment and did not meet its burden of proof with regard to whether Complainant posed a significant risk of substantial harm.
Is Driving Commercial Vehicles Interstate an Essential Function of the Position?
We note that even if the Agency had shown that Complainant would have posed a direct threat if allowed to drive Commercial Motor Vehicles, it would still have been required to determine whether driving Commercial Motor Vehicles interstate is an essential function of the foreman position, or whether, as Complainant argues, the function was marginal and could have been removed as a reasonable accommodation. 29 C.F.R. � 1630.2(m) and (n); Ganson v United States Postal Service, EEOC Appeal No. 01A01214 (February 12, 2004).
We note that the job description for the electrical foreman position states that having at least a Class B CDL is a qualification for the position. However, there is nothing in the record that would indicate how often, if ever, a foreman has been required to respond to an emergency situation which required the transportation of Commercial Motor Vehicles across state lines. Additionally, Complainant served as a foreman on numerous occasions and had never been required to drive a Commercial Motor Vehicle. Complainant's supervisor stated that having a CDL is not an essential function of the foreman position, and that foremen do not use the CDL on a regular basis. Therefore, the Agency failed to establish that driving a Commercial Motor Vehicle interstate is an essential function of the foreman position.
Based upon the record, the Commission finds that the Agency failed to establish that Complainant is a direct threat or that providing Complainant with the accommodation of waiving the S5 medical examination or removing the driving requirement altogether would cause an undue hardship. As a result, the Agency violated the Rehabilitation Act.
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, the Commission applies the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
The Complainant has established that he is an individual with a disability, that he is qualified for the dual-rate foreman and permanent foreman positions, that he was subjected to an adverse employment action when he was not allowed to serve as a dual-rate foreman and not selected for the permanent foreman position, and the circumstances surrounding the adverse action give rise to an inference of discrimination. Therefore, Complainant established his prima facie case of discrimination.
The Agency articulated that Complainant was not permitted to serve as a dual-rate foreman after December 2007 and he was not selected for the permanent foreman positions because he did not have a seven-state CDL and pass the S5 medical examination in conformance with DOT regulations. Additionally, the Agency stated that Complainant was not selected to go to Sequoyah Nuclear Plant because Complainant's "grandfathered" position was location-specific in accordance with TVASP-610, and he was limited to the Watts Barr Nuclear Plant.
As we noted earlier, the Agency erred when it depended solely upon the DOT regulations to determine that Complainant was not qualified for the foreman positions without doing an individualized assessment of his disability. Additionally, the record supports the finding that Complainant would have been selected to serve as a dual-rate foreman from December 2007 until February 4, 2009, and he would have been selected as a permanent foreman on February 4, 2009, had the Agency done an individualized assessment of his disability and provided him with a reasonable accommodation. Finally, Complainant was not permitted to go to the Sequoyah Nuclear Plant because of dependence on the language in TVASP-610, which relied solely on DOT regulations. As a result, we find that Complainant established that the Agency violated the Rehabilitation Act when it did not allow him to serve as a dual-rate foreman, when it did not select him for the permanent foreman position, and when it did not allow him to perform work at the Sequoyah Nuclear Plant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decisions because a preponderance of the evidence of the record establishes that discrimination existed as alleged. The Agency is directed to comply with the order below.
ORDER
The Agency is ORDERED to take the following actions:
1. Within (120) calendar days of the date of this decision, the Agency shall offer Complainant a permanent foreman position at the Watts Bar Nuclear Plant, or a substantially equivalent position. Complainant shall have 15 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 Complainant can show that circumstances beyond his control prevented a response within the time limit. If the offer is accepted, appointment shall be retroactive to February 4, 2009. If no substantially equivalent position is available, then the Agency shall pay Complainant front pay within sixty days of the date it determined that no position was available. Front pay shall be awarded until Complainant has been placed in the appropriate position as stated above. If there is a dispute regarding the exact amount of front pay, the Agency shall issue a check to Complainant for the undisputed amount within sixty days of the date the agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
2. Within (120) calendar days of the date of this decision, the Agency shall reasonably accommodate Complainant's disability in the foreman position by either waiving the S5 medical requirement or waiving the requirement that Complainant be able to drive Commercial Motor Vehicles interstate.
3. Within (120) calendar days of the date of this decision, the Agency shall determine the appropriate amount of back pay (with interest, if applicable) and other benefits due Complainant, pursuant to 29 C.F.R. 29 C.F.R. � 1614.501. Back pay shall include compensation for the times that Complainant would have served as a dual-rate foreman between December 2007 until February 4, 2009. Back pay shall also include compensation for the permanent foreman position from February 4, 2009, until the present. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
4. The Agency shall conduct a supplemental investigation into Complainant's compensatory damages and attorney's fees and costs. The Complainant shall cooperate in the Agency's efforts to compute the compensatory damages, attorney's fees, and costs, and shall provide all relevant information requested by the Agency. Within (60) calendar days of the Agency's receipt of Complainant's compensatory damages evidence and attorney's fees statement, the Agency shall issue a final decision addressing the issues of attorney's fees, costs, compensatory damages, and back pay. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer.
5. Within (120) calendar days of the date of this decision, the Agency shall consider taking appropriate disciplinary action against the Responsible Management Officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
6. Within (120) calendar days of the date of this decision, the Agency shall provide at least (8) hours of EEO training to all management officials in the Watts Barr Nuclear Plant and all responsible Human Resources officials, with an emphasis on the Rehabilitation Act.
7. The Agency shall post the attached notice, as prescribed in the Posting Notice Order below.
8. The Agency shall provide a report of compliance with this order to the Commission's Compliance Office. Copies must also be sent to Complainant and his representative.
POSTING ORDER (G0610)
The Agency is ordered to post at its Watts Bar Nuclear Plant facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
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).
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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:
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Carlton M. Hadden, Director
Office of Federal Operations
February 20, 2015
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Date
1 A dual-rate foreman serves in place of the permanent foreman when the permanent foreman is not available. The essential functions and requirements of the positions are identical.
2 This claim was amended to the complaint on June 6, 2008.
3 The parties settled this claim, therefore it will not be addressed in this decision.
4 This claim was amended to the complaint on February 10, 2009.
5 Since the dual-rate foreman and permanent foreman positions have identical essential functions and requirements, we will address them both as "foreman" positions in this analysis.
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0120111968
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093256 & 0120111968