01971399
03-24-2000
Hoyt Shelton, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Hoyt Shelton v. Department of the Army
01971399
March 24, 2000
Hoyt Shelton, )
Complainant, )
) Appeal No. 01971399
v. ) Agency No. 94-09-0101
) Hearing No. 310-96-5075
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical disability (cervical
discinjury and pinched nerves), in violation of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the agency's decision
is AFFIRMED.
ISSUES PRESENTED
The issues on appeal are whether the agency discriminated against
complainant when the following occurred:
(1) on or about September 18, 1991, complainant was injured on the job and
personnel in the Labor Relations Office did not provide him with adequate
aid and services to file for a differential in pay (loss of wages);
(2) on or about September 20, 1992, complainant's temporary promotion
to the position of Engineering Equipment Operator, WG-10, expired and
he was never considered for any temporary promotions since that date;
(3) on dates unknown, complainant was denied overtime while other
employees in his organization received overtime;
(4) on dates unknown, complainant did not receive awards while other
employees in his organization received awards; and
(5) on dates unknown, complainant was forced to drive over 60 miles a
day to and from work (commuting) and on base for his job, while under
the influence of medication, in order to keep working.
BACKGROUND
Complainant was permanently promoted to his WG-3 Laborer position by
the agency in March 1987. Complainant was temporarily promoted to the
position of Engineering Equipment Operator, WG-8, from May 24, 1987,
until September 13, 1987. Then he returned to his WG-3, Laborer position.
Complainant received several temporary promotions from June 1988 through
May 1991. On May 19, 1991, complainant was selected for a competitive
temporary promotion to the position of Engineering Equipment Operator,
WG-10. This temporary promotion was extended on September 27, 1991, until
September 19, 1992, although complainant had suffered an on-the-job injury
on September 18, 1991. Complainant was on leave-without-pay (LWOP) due
to this injury from November 11, 1991, through January 12, 1992, and from
May 4, 1992, through June 2, 1992. On June 4, 1992 complainant returned
to duty, and he was moved back to his Laborer, WG-3, position upon the
expiration of his temporary promotion to WG-10 on September 20, 1992.
Because of his dissatisfaction with being placed back in his WG-3
permanent position, complainant, filed a formal EEO complaint with the
agency on July 12, 1994, alleging that the agency had discriminated
against him as referenced above under "Issues Presented." Following
complainant's successful appeal to this Commission, the agency was ordered
to conduct a sufficient inquiry that would enable it to make a reasoned
decision as to whether to accept four dismissed claims. The agency was
also ordered to accept complainant's fifth claim and to continue its
processing. (EEOC Appeal No. 01945069) The agency subsequently accepted
the four claims it had initially dismissed and processed complainant's
complaint to include the remanded issue. At the conclusion of the
agency's investigation, complainant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
First, the AJ appears to have analyzed the present matter as a reasonable
accommodation case. In doing so, the AJ concluded that complainant
was not a "qualified individual with a disability" as defined by the
Rehabilitation Act because the AJ determined that complainant could
not perform the essential functions of his job as a laborer. Second,
the AJ also analyzed complainant's claim as a disparate treatment case
and concluded that complainant failed to establish a prima facie case
because complainant was treated the same as other employees with respect
to his temporary promotion. The AJ further noted that the responsible
agency official (RO) testified that complainant was not demoted, but
that his temporary promotion expired. The AJ found no evidence of
discrimination or alleged inefficiency by the responsible officials,
with regard to complainant's claim concerning the allegedly inadequate
aid and service he received from labor relations while attempting to
file for differential in pay.
As for complainant's claims regarding a denial of overtime opportunities,
the AJ determined that complainant's physical limitations restricted
him from being able to perform a full range of duties that would warrant
overtime. The AJ also noted that the comparison cited by complainant had
different physical limitations which did not hinder her from performing
overtime duties. Furthermore, the AJ found that complainant was placed in
a light-duty assignment as an accommodation after his on the job injury.
She further concluded that there was no duty to provide overtime in
that accommodation. The agency's FAD adopted the findings of the AJ.
On appeal, complainant asserts the same contentions as stated in his
formal complaint. In addition, complainant appears to contend that
the agency is attempting to constructively discharge him by failing to
enter into a resolution agreement. The agency stands on the record and
requests that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
The Commission follows the guidance of McDonnell Douglas 411 U. S. 792
(1973), when assessing whether an complainant has established a prima
facie case of disability discrimination based on disparate treatment.
See also Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248 (1981).
First, we note that complainant's claims, including the claim that he was
removed from his temporary promotion to his permanent position as a WG-3
Laborer and has not been considered for a promotion since the removal,
are not reasonable accommodation claims but rather disparate treatment
claims. Also, we note that complainant asserts that at the time of
his initial employment with the agency, he had a physical disability
(loss of his hand at the wrist). However, in this matter complainant
contends that his alleged disability resulting from his on-the-job-injury
(cervical disc injury and pinch nerves) was the motivation behind agency
officials discriminatory treatment.
We do not reach the issue of whether or not the AJ correctly held that
complainant is not a "qualified individual with a disability" within
the meaning of the Rehabilitation Act. Based on our review of the
record, we find that even assuming, arguendo, that complainant is a
"qualified individual with a disability," the agency successfully
rebutted any inference of discrimination that complainant may have
established by articulating legitimate, nondiscriminatory reasons for
its actions. Specifically, in response to complainant's Issue #1, the
Chief testified that complainant was not denied the right to file a
claim for a differential in pay (lost wages) to the Office of Worker's
Compensation Program (OWCP). Complainant applied for and was denied the
pay differential. The record supports the agency's representations and
we further find no evidence to support complainant's contentions that
he was treated unfairly or impartially by the officials in the Labor
Management and Employee Services Division. Regarding complainant's Issue
#2, complainant's second level supervisor (Responsible Official (RO)),
testified that complainant's temporary promotion was extended on September
27, 1991, for a year, after his on-the-job injury on September 18, 1991,
because it was anticipated that complainant would return to full duty
status from his injury after two or three months in a light-duty status.
The RO added that complainant's temporary promotion to WG-10 expired
in September 1992, the RO had to "lay-off" 49 people and demote all
temporary appointments. The RO further stated that there were other
engineering equipment operators who were demoted along with complainant.
However, two employees were not demoted, because there was funding to
keep them and a "workload" for them. The RO also stated that he had not
had an opportunity since complainant's temporary promotion expired to
increase the number of Engineering Equipment Operator positions, but if
the opportunity arose and complainant met the physical qualifications,
he would be considered.
When asked why complainant was not given overtime (Issue #3), the RO
testified that because of complainant's physical limitations he was
performing duties answering the telephone, taking care of trip tickets
etc. According to the RO, there was no overtime for someone to answer
the telephone or perform the other tasks that complainant performed
in his light-duty status. The RO also explained that a co-worker on
light-duty was given overtime, because he was able to perform a wider
range of duties than complainant which included lifting of 10- to 20
pounds and putting in spiking mauls. Regarding complainant's Issue #4
(lack of awards), complainant's first level supervisor (RO 2) testified
that Special Act Awards were given to an employee who worked on a landfill
project. Complainant received a cash award for his participation on this
project, but because the amount was not as large as the amount received
by other employees, complainant returned the cash. RO2 explained that
the differences in the amount of cash awards was due to the type of work
that was done.
Finally, in response to complainant's claim that he was being forced
to drive over 60 miles a day to and from work and on the base (Issue
#5), Both RO 1 and RO 2 testified that complainant's physician expanded
complainant's light-duty restriction to include driving a light pick-up
truck. The record contains a copy of a document from complainant's
physician corroborating the agency officials' testimony. There is no
other evidence to support complainant's contentions that he was being
forced to drive or to perform duties beyond his light-duty restrictions.
Also, there is no persuasive evidence in complainant's appeal statement
to support complainant's discrimination claim. Therefore, we discern
no basis to disturb the AJ's findings of no discrimination.
CONCLUSION
Accordingly, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not discussed in this decision, the Commission AFFIRMS the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov. The Rehabilitation Act was amended
in 1992 to apply the standards in the Americans with Disabilities Act
(ADA) to complaints of discrimination by federal employees or applicants
for employment. Since that time, the ADA regulations set out at 29
C.F.R. Part 1630 apply to complaints of disability discrimination.
These regulations can be found on EEOC's website.