0120130703
07-24-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130703
Agency No. 126592300049
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 2, 2012 final decision 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.
At the time of events giving rise to this complaint, Complainant worked as a Nondestructive Testing Inspector and Evaluator, WG-3705-09 at the Agency's Fleet Readiness Center East facility in Cherry Point, North Carolina. In a formal complaint dated November 15, 2011, Complainant alleged that he was discriminated against on the basis of disability, when on August 29, 2011 management moved him from the second shift to the first shift.
The record reflects that sometime in March 2011, Complainant was disqualified from performing x-ray monitor duties. In July 2011 Complainant declined his first shift First Line Supervisor's (S1's) request to work overtime. In response, S1 requested and received documentation of Complainant's history of heart attacks and strokes, and sent him to the Occupation Health Clinic. In response to S1's request, Complainant brought in a doctor's note dated July 11, 2011 identifying his condition, and stating that his work week should be restricted to only forty (40) hours, i.e., no overtime.
After becoming aware of the severity of Complainant's medical condition and his medical restriction, an agreement was reached between S1 and Complainant's first shift Second Line Supervisor (S2) that Complainant should be removed from the second shift. After considering all factors, and examining the workforce, they felt it was best to replace Complainant on second shift with someone who could perform all the functions associated with working on second shift, i.e., conducting x-ray and working overtime. Ensuring that all employees on the second shift could work overtime would allow overtime to be fairly distributed. Also, increased workloads and personnel shortages were also cited as rationales in support of the change.
We assume for the purposes of this decision that Complainant is an individual with a disability. The record establishes that Complainant's medical restrictions prevented him from working in excess of 40 hours a week. Complainant offered no evidence that employees who were unable to work overtime were allowed to work second shift. Additionally, Complainant offered no evidence that his x-ray qualifications were reinstated during the time frames relevant in the instant matter. The Agency articulated legitimate business reasons for the action it took, which Complainant alleged was discriminatory. We, however, find no persuasive evidence of pretext.1 The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
___7/24/15_______________
Date
1 To the extent Complainant is alleging that he was somehow denied a reasonable accommodation when he was removed from second shift, we disagree. Complainant's medical restrictions required that he not work more than 40 hours per week. There is no dispute that the Agency has complied with this request. Regardless of whether he works on the first or second shift, he is only working 40 hours per week.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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