Eugene Cooper, Jr., Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionOct 21, 2003
01A23441_r (E.E.O.C. Oct. 21, 2003)

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.