Daniel L. Vereen, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
07A00006_r (E.E.O.C. Sep. 26, 2002)

07A00006_r

09-26-2002

Daniel L. Vereen, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Daniel L. Vereen v. Department of the Navy

07A00006

September 26, 2002

.

Daniel L. Vereen,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 07A00006

Agency No. 96-44466-006

Hearing No. 110-998119X

DECISION

On November 22, 1999, the agency timely filed an appeal in connection with

its final order concerning complainant's complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

and Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. In his complaint, dated February 22, 1996,

complainant claimed that he was discriminated against on the bases

of disability (thrombocythemia and splenomegaly) and in retaliation

for prior EEO activity when, on October 5, 1995, he was assigned to a

position with exposure to harmful chemicals.

Beginning in October 1991, complainant occupied the position of Painter,

WG-4102-09, at the agency's Trident Refit Facility (TRF) in Kings Bay,

Georgia. Complainant's physicians notified the agency in October 1992,

that complainant suffered from thrombocythemia, a myeloproliferative<1>

disorder known to cause thrombosis and bleeding problems. In addition,

a small number of patients may develop leukemia in the later stages of

this illness. Complainant's condition required him to avoid exposure

to chemicals or paints with carcinogenic effects and leukemogeneic

properties, and to avoid high risk occupations prone to cause accidents

or change

in atmospheric pressure which can cause bleeding or thrombosis, such

as climbing, working at heights, lifting, carrying, and operating heavy

duty vehicles.

In September 1993, complainant was downgraded by the agency to a WG-6

position as a Tool and Parts Attendant. Complainant filed a complaint on

November 19, 1993, as a result of the downgrade, claiming discrimination

on the bases of race (Black) and disability (blood disorder), when he was

not accommodated at his grade level and not provided with retained pay.

Complainant requested a hearing, and, on May 22, 1995, a hearing was

conducted before an EEOC Administrative Judge (AJ), the same AJ who later

conducted a hearing regarding complainant's February 22, 1996 complaint.

On July 6, 1995, following a hearing regarding complainant's November

19, 1993 complaint, the AJ found that the agency, by treating disabled

individuals differently, depending on whether the individuals had been

injured on the job, or off the job, violated the Rehabilitation Act.

The AJ also found discrimination on the basis of race (Black) where White

individuals received unofficial accommodations for their disabilities,

whereas Black individuals were not offered unofficial accommodations.

The AJ's order directed the agency to take the following remedial

actions: (1) promote complainant back to his WG-9 position or to a

similar position as of the date he was downgraded; (2) reimburse to

complainant the attorney's fees he paid in this matter, as well as

any other costs associated with his prosecution of the case;<2> (3)

assess the dollar value of any emotional harm suffered by complainant

as a result of the discrimination suffered;<3> and (4) post a notice on

the appropriate employee bulletin boards as required by the Commission's

regulations, which shall indicate that the agency has been found to have

discriminated and further indicate what steps it will take to see that

such discrimination does not occur again.

In the agency's final decision, dated August 25, 1995, the agency adopted

the analysis and conclusions of the AJ as the final decision of the

agency, and found that complainant was discriminated against on the bases

of disability and race when he was not accommodated at his grade level.

By letter from the agency's Employment Director, dated October 5, 1995,

complainant was notified that he would be placed in the position of

Toolroom Mechanic, WG-4840-09, in the Industrial Plant Equipment and

Tool Maintenance Shop, and that his reassignment would be effective from

October 3, 1993, pursuant to the AJ's adopted order. Complainant was

ultimately reassigned to the position of Toolroom Mechanic by the

Technical Director, GS-801-15, TRF.

Complainant reported to the Toolroom Mechanic position on October 11,

1995. Within two to three days of when complainant reported to the

Toolroom Mechanic position, he informed his immediate supervisor that he

had contacted the EEO office because he was working in an area where he

was exposed to harmful chemicals. Complainant's second line supervisor

had complainant moved immediately out of the Toolrom Mechanic position to

the Electric Shop, where complainant served as an Electrician Assistant.

He was detailed to the Electric Shop on October 16, 1995. In the position

of Electrician Assistant, complainant assisted the electrical mechanics

with preventative maintenance and, in general, assisted the mechanic to

whom he was assigned. Complainant remained in the Electric Shop until

he was reassigned to the Technical Library, as a Technical Information

Specialist, GS-1412-9, on January 26, 1996.

On November 17, 1995, complainant initiated contact with an EEO Counselor,

and, complainant filed a new complaint of discrimination on February

22, 1996, where, among other claims, complainant claimed that he was

discriminated against on the bases of disability (thrombocythemia

and splenomegaly) and in retaliation for prior EEO activity, when he

was assigned to a position with exposure to harmful chemicals.<4> On

September 15, 1999, an AJ issued a recommended decision<5> finding that

complainant was discriminated against on the basis of disability when

he was assigned to a position with exposure to harmful chemicals.<6>

On November 22, 1999, the agency issued a decision in which the agency

found that it would not implement the AJ's September 15, 1999 recommended

decision.

A review of the record reveals that although complainant filed a new

complaint of discrimination on February 22, 1996, the claim should have

been treated as a claim that the agency failed to comply with provision

(a) of its final order issued on August 25, 1995 (which adopted provision

(1) of the AJ's order in the AJ's July 6, 1995 decision).<7> Provision

(a) of the agency's August 25, 1995 order states that the agency will,

�Place [complainant] in a position commensurate with [his] physical

limitations at the WG-09 grade level or in a similar position as of the

date [he was] downgraded.� The proper procedure for raising a claim of

noncompliance with an agency's final order is set forth in EEOC Regulation

29 C.F.R. Section 1614.504. If a complainant believes that the agency

has failed to comply with the terms of its own final order, then the

complainant shall notify the EEO Director of the alleged noncompliance

within 30 days of when the complainant knew or should have known of the

alleged noncompliance. 29 C.F.R. � 1614.504(a).

We find that complainant's February 22, 1996 complaint was improperly

accepted by the agency (and processed by the AJ) as a claim of

discrimination. Complainant's claim that he was not reasonably

accommodated in the instant matter stems directly from the agency's

finding of discrimination on August 25, 1995, and accompanying remedy

requiring complainant to be placed in a position at the WG-09 level

commensurate with his physical limitations. The agency should have

informed complainant of his obligation to notify the EEO Director of his

claim of noncompliance. See 29 C.F.R. � 1614.504(a). The Commission

will therefore treat complainant's complaint as a claim that the agency

failed to comply with provision (a) of the agency's final order issued

on August 25, 1995.

The Commission finds that the record contains sufficient information to

make a determination as to whether the agency complied with provision (a)

of the agency's August 25, 1995 final order. For the reasons described

herein, we find that the agency has complied with provision (a) of its

August 25, 1995 final order, in which the agency was to place complainant

in a position commensurate with his physical limitations at the WG-09

grade level or in a similar position as of the date he was downgraded.

The Technical Director, who ultimately assigned complainant to the

position of Toolroom Mechanic, claims that he was trying to comply with

the agency's August 25, 1995 final order when he assigned complainant

to that position. Complainant reported to the position of Toolroom

Mechanic on October 11, 1995. Two to three days later, complainant

informed his immediate supervisor that the position exposed him to

harmful chemicals, and the agency immediately removed him from the

position. Complainant physically reported to the position of Toolroom

Mechanic for a total of three to five days. The Technical Director later

admitted that he only took a �quick look� at the position description for

Toolroom Mechanic when he first assigned complainant to the position,

and, he did not review the authorized user list (AUL), which sets

forth every hazardous chemical that is used at each shop at the TRF.

He also admits to not having a full understanding of complainant's

medical condition; specifically, not knowing how bleeding would impact

complainant, who has a blood disorder. He merely conducted a �cursory

review� of complainant's medical restrictions and the requirements of

the Toolroom Mechanic position to which he was assigned, and instead,

delegated the responsibility of reassignment to the coordinator at

TRF for medical placements, who subsequently left the command, and the

Human Resources Office. We will assume, arguendo, that the position of

Toolroom Mechanic did not conform with complainant's physical limitations,

and that contrary to agency assertions, it was not a �good match.�<8>

After complainant was removed from the position of Toolroom Mechanic, he

was immediately detailed as an Electrician Assistant in the Electric Shop.

Complainant's immediate supervisor as Toolroom Mechanic also supervised

the position of Electrician Assistant. In his affidavit, dated September

15, 1998, complainant claimed that while in the Electric Shop, he was

�still in an industrial environment where it could not be guaranteed that

[he] would have been [protected] from harmful chemicals.� Complainant

stated that he would leave the building to protect himself when he knew

there were chemicals in the area.

The Commission notes, however, that in complainant's affidavit he states,

�The position to which I was assigned and feel was for discriminatory

reasons was Tool Room Mechanic.� There is no mention in his affidavit

of a belief by complainant that his detail to the Electric Shop was

discriminatory or was an attempt by the agency to breach its August 25,

1995 final order. Furthermore, the agency's Technical Director, in his

affidavit, dated September 15, 1998, testified that he asked complainant

if he felt comfortable going to the Electric Shop, and complainant

indicated that he did. Complainant does not recall the details of his

discussion with the Technical Director regarding his concerns about the

Electrician Assistant position; however, he admits in his testimony at

the hearing that took place on August 19, 1999 through August 20, 1999,

that he did indicate to the Technical Director that he was doing fine

in the Electric Shop and that he did not initially have concerns with

the position. Complainant does not recall if he brought his subsequent

concerns to the attention of the Technical Director. Furthermore, it was

an immediate move meant to remove complainant from what he identified

as a harmful position. Complainant's second line supervisor testified

in his September 25, 1998 affidavit that they moved complainant to the

Electric Shop in order to place him in an area as far away from any

chemicals as possible; however, complainant was not qualified for a

position in the Electric Shop, so he was placed there on a temporary

basis until they could find him permanent placement.

On January 26, 1996, complainant was reassigned to the position

of Technical Information Specialist, GS-1412-9; however, he was not

qualified for the position and grade at the time that he was assigned.

The agency provided complainant with two years of training in order to

qualify complainant for the position, which complainant has now fulfilled.

Complainant has made no claim that his current position of Technical

Information Specialist fails to conform with his physical limitations.

Complainant has essentially asserted that the agency did not make a good

faith effort to meet its obligations under its August 25, 1995 final

order. We find that the agency's performance in meeting the obligations

of the final order was not so lacking as to warrant a finding of bad

faith. There is no claim or indication in the record that complainant is

not now being reasonably accommodated. The Commission is persuaded that

the agency made a good faith effort to place complainant in a position in

accordance with the standards specified within the agency's final order.

Accordingly, we find that the agency has complied with provision (a)

of the agency's August 25, 1995 final order.

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

September 26, 2002

__________________

Date1Myeloproliferative means pertaining to or

characterized by an unusual proliferation of the tissue elements of bone

marrow, or any of the types of blood cells derived from bone marrow,

or both.

2The AJ concluded that complainant was not entitled to back pay because

the agency indicated that he had already been paid back pay.

3The AJ stated that the agency's assessment should be based on the

evidence in the record and on any new information or evidence it

may produce or request of complainant. The agency was then to award

complainant an amount of compensatory damages equal to the dollar value

assessed. Complainant requested $30,000.00 in compensatory damages.

The agency awarded complainant $10,000.00 in non-pecuniary compensatory

damages. Complainant appealed the agency's award to the Commission,

claiming that he should have received an additional $20,000.00 in

non-pecuniary compensatory damages. The Commission affirmed the agency's

final decision, finding that complainant was entitled to $10,000.00 in

non-pecuniary compensatory damages. See Vereen v. Department of the Navy,

EEOC Appeal No. 01984409 (March 9, 2000).

4The Commission affirmed the agency's dismissal of four of

complainant's claims for failure to state a claim, pursuant to 29

C.F.R. � 1614.107(a)(1), but vacated and remanded for further processing

complainant's claim that he was assigned to a position with exposure to

harmful chemicals. See Vereen v. Department of the Navy, EEOC Appeal

No. 01964155 (June 4, 1998).

5We note that the AJ's decision, which was issued prior to the

implementation effective November 9, 1999, of revisions to EEOC

Regulations in 29 C.F.R. Part 1614, was, by its own terms, only a

�recommended� decision.

6In the remedy, the AJ did not require the agency to reasonably

accommodate complainant.

7 The Commission notes that complainant has not challenged the remedies

offered by the AJ in his July 6, 1995 decision, which were essentially

adopted by the agency on August 25, 1995.

8The agency argues that it took steps to confirm that the Toolroom

Mechanic position was an acceptable accommodation for complainant.

A review of the position was conducted by the agency's occupational

health physician after complainant called the agency's attention to the

harmful chemical exposure to which he would be subjected in that position.

The occupational health physician indicated that the exposure to chemicals

would be of a very limited nature; however, a review of the record does

not conclusively indicate that such position would be acceptable for

someone with complainant's particular medical limitations.