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.