01A23775
09-25-2003
Efren L. Briones, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Efren L. Briones v. Department of the Navy
01A23775
September 25, 2003
.
Efren L. Briones,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23775
Agency No. 97-63200-004
Hearing No. 340-99-3464X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that, at all times relevant to this complaint,
complainant was employed by the agency as an Engineering Technician,
GS-802-09, at the Naval Satellite Operations Center (NAVSOC), in
Point Mugu, California. Believing he was a victim of discrimination,
complainant filed a formal EEO complaint, alleging that the agency
discriminated against him on the bases of his race (Pacific Islander),
national origin (Philippines), disability, age (D.O.B. 12/23/42), and
in reprisal for prior EEO activity, when:
(1) he was subjected to a pattern of harassment from October 1995
leading to his retirement on August 27, 1996; and
the agency failed to provide reasonable accommodation when it returned
complainant to his worksite from the flexiplace program in March 1996.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).<1> Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant failed to show that the harassment
on the bases of national origin or disability was sufficiently severe
or pervasive to alter his working conditions. As to age and reprisal
harassment, the AJ found that complainant did not offer evidence to
establish that he was harassed on these bases. As to issue (2), the AJ
found that the agency did not contest that complainant was an individual
with a disability during the relevant time period. The AJ further found
that complainant was a qualified individual with a disability. The AJ
then found that the agency met its obligation to provide complainant
with reasonable accommodations when it: (1) assigned him to light duty
work; (2) allowed him to work at home; (3) permitted him to take naps
and breaks when he returned to the worksite; (4) permitted him to use
leave to seek treatment for his addiction to pain medication; and (5)
complied with his physician's request for a six-hour work day. The AJ
further found that complainant failed to establish that the termination
of the flexiplace agreement constituted a failure to provide reasonable
accommodation. In so finding, the AJ noted that complainant's physician,
when he requested that complainant be put on a six-hour work day, did
not state that complainant needed to be returned to flexiplace in order
to comport with his restrictions. The agency's final order implemented
the AJ's decision.
On appeal, complainant, through his attorney, argues that when the agency
materially breached the flexiplace agreement, it failed in its duty to
continue to provide complainant a reasonable accommodation. Complainant
additionally contends that he was subjected to a hostile work environment
on the alleged bases, and that his retirement constituted a constructive
discharge. The agency requests that we affirm its final order.
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.
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 final agency order. In so
finding, we note that assuming arguendo complainant is an individual
with a disability, the Administrative Judge's ultimate finding, that
unlawful employment discrimination on any alleged basis was not proven
by a preponderance of the evidence, is supported by the record.
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 25, 2003
__________________
Date
1 The agency filed a motion for a decision without a hearing. The AJ
partially denied the motion, and partially granted it solely as to the
allegation that complainant was constructively discharged when he retired
on August 27, 1996. The AJ, however, subsequently heard evidence on the
events leading up to the alleged constructive discharge at the hearing,
and ultimately made a finding on the merits of the constructive discharge
claim. Specifically, the AJ found that complainant failed to satisfy the
requirements of a constructive discharge claim because complainant could
not show that he was subjected to working conditions that a reasonable
person would have found intolerable. Accordingly, since the AJ issued a
decision on the merits of the constructive discharge claim after holding
a hearing, we review pursuant to 29 C.F.R. � 1614.405(a).