01A23441_r
10-21-2003
Eugene Cooper, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Eugene Cooper, Jr. v. Defense Commissary Agency
01A23441
October 21, 2003
.
Eugene Cooper, Jr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A23441
Agency Nos. 98DCW12B030 and 00DCW12B016
Hearing Nos. 380-99-8247X and 380-A1-8072X
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. 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.
Complainant, a GS-2 store clerk at the agency's Silverdale,
Arizona facility, filed a formal EEO complaint on January 4, 2000,
alleging that the agency discriminated against him on the bases of race
(African-American) and disability and in reprisal for prior EEO activity
when it denied his request for an increase in his scheduled work hours.
The record reveals that complainant previously was employed as a
part-time store worker, WG-4, and was scheduled to work 32 hours per week.
After complainant was injured on the job in June 1996, the agency moved
complainant to the Commissary ID Desk and scheduled him to work 24 hours
per week. From January 1997 through March 1997, complainant's physician
restricted him from lifting more than five pounds and pushing and pulling
with his left arm. In response, the agency reduced his work hours from
32 to 24 hours per week. On October 13, 1997, complainant's physician
further restricted complainant from lifting with his left arm, carrying
more than five pounds, and pulling or pushing for more than four hours
per day. On April 28, 1998, complainant requested additional work hours
and claimed that other part-time workers had been scheduled to work more
than 24 hours per week. Complainant's second-line supervisor denied
complainant's request on May 7, 1998.
After complainant's physician diagnosed him as having permanent chronic
epicondylitis/cubital tunnel syndrome, the agency offered complainant
a light duty position of store clerk, GS-303-02, on June 5, 1998, with
24 hours of work per week. Complainant was permanently restricted from
crawling; finger manipulation with his left arm; reaching and climbing;
handling pushing, pulling, lifting and carrying with his left arm only.
On June 5, 1998, complainant accepted the position, but his physician
noted that he believed complainant could work up to 40 hours per
week. Complainant subsequently initiated EEO counseling on June 10,
1998 regarding the instant complaint.
At the conclusion of the investigation into complainant's complaint,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision finding no discrimination. The AJ
concluded that complainant was a qualified individual with a disability.
Under a reasonable accommodation analysis, the AJ determined that it
was unreasonable for the complainant to expect the agency to convert his
part-time position into a full-time position. Under a disparate treatment
analysis, the AJ further found that the agency did not discriminate
against complainant on the basis of disability when it failed to grant
his request for more work hours because complainant failed to persuasively
rebut the agency's legitimate, non-discriminatory reasons for its actions.
The agency fully implemented the AJ's decision in a final order dated
May 1, 2002.
On appeal, complainant contends that the AJ erred when she found no
discrimination and reasserts arguments previously stated during the
hearing. 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.
In analyzing a disparate treatment claim where there is no direct evidence
of discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Although the
initial inquiry in a discrimination case usually focuses on whether the
complainant has established a prima facie case, following this order
of analysis is unnecessary when, as here, the agency has articulated
a legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether the complainant has established a prima
facie case to whether he has demonstrated by a preponderance of the
evidence that the agency's reasons for its actions were a pretext for
discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 714-717 (1983).
As an initial matter, we assume arguendo that complainant is a qualified
individual with a disability under the Rehabilitation Act. Complainant
maintains that the agency subjected him to disparate treatment on the
bases of disability, race, and prior EEO activity because it refused to
allow him to work 32 hours per week, although it allowed other part-time
employees to work about 30 hours per week. The record reveals that the
agency scheduled complainant to work 24 hours per week from June 1996
until May 2000 in the grocery department, which was increased to 28
hours per week in May 2000. During the relevant time period, the three
other part-time employees in the grocery department also were regularly
scheduled to work 24 hours per week, but occasionally worked additional
hours when the agency needed additional work to be done.
In response to the agency's complaint, the agency stated that in order to
assign complainant additional hours, there had to be a business-related
justification and that there were no extra hours to give complainant
consistent with his physical limitations. The agency maintained
that there were few other duties that complainant could do within his
physician-approved restrictions in addition to his light duty assignments:
answering phones, checking prices, and ID desk work. In contrast, the
agency responded that other part-time employees were sometimes given
additional hours because they could do additional tasks such as working
in the cashier cage. Upon review, we note that the record contains a
note from complainant's physician stating that he believed complainant
could work up to 40 hours per week, but the physician did not indicate
that there was any change in complainant's medical restrictions from his
prior diagnosis or that there were additional duties and tasks complainant
could undertake that would justify an expansion of his hours consistent
with his limitations. We further note that the record indicates that
the agency attempted to give complainant additional hours when work was
available within his particular restrictions. Consequently, we find
that complainant failed to rebut by the preponderance of the evidence
the agency's legitimate, non-discriminatory reasons for its actions as
pretext for unlawful race, disability or retaliatory discrimination.<1>
Finally, we note that on appeal complainant contends that the AJ
improperly assessed his testimony as not credible on several matters.
The Commission notes that the credibility determinations of the AJ are
entitled to deference due to the AJ's first-hand knowledge, through
personal observations, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). In this matter, we find no
basis to find that the AJ's credibility determinations were inappropriate
or otherwise unworthy of deference by the Commission.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws, except as otherwise noted in this decision. We discern no
basis to disturb the AJ's finding of no discrimination. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's 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
_October 21, 2003_________________
Date
1We note that the AJ analyzed
complainant's complaint as both a denial of a reasonable accommodation
claim and a disparate treatment claim. However, we note that in
his hearing testimony, complainant stated that he "never requested
accommodations....I just asked to be included with the hours that had
been distributed to my other coworkers that are part time." As such,
we determine that complainant's complaint does not involve an alleged
denial of reasonable accommodation and therefore solely analyze it as
a disparate treatment claim.