0120080945
02-18-2011
James G. Rasmussen, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
James G. Rasmussen,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080945
Agency No. DON (MC) 06-62204-00959
DECISION
On December 11, 2007, Complainant timely filed an appeal from the
Agency's November 8, 2007, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the
appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency failed to accommodate
Complainant's disability (diabetes) when it refused to allow him to eat
meals in the break room throughout the day; and (2) whether Complainant
was terminated because of his disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Heavy Mobile Equipment Repairer, WG5803-08 at the Agency's Marine
Corps Logistics Base in Barstow, California. In this capacity, he
was responsible for checking completeness and operation of equipment
and vehicles; making minor repairs such as tightening or replacing
missing bolts, screws or other fasteners; removing and replacing
defective subassemblies or accessories; making tune-up adjustments
to engines; making closer or uniform adjustments to control linkages;
making adjustments to brakes; and correcting other discrepancies noted
by mechanics and inspectors. Complainant was initially hired into this
position on January 9, 2005.
On January 5, 2006, Complainant received a document titled "Notice of
Termination during Trial Period," which informed him that the Agency
had decided to terminate his employment. The document indicated that
Complainant was terminated for the following reasons:
1. On February 1, 2005, Complainant was observed sleeping in the break
area during duty hours, and refused to join his co-workers at a retirement
party when he was instructed by his Team Leader (Team Lead I) to do so.
2. On April 21, 2005, Complainant was observed eating a full plate of food
and when Team Lead I indicated it was not break time, Complainant stated,
"I can do it."
3. On April 26, 2005, Complainant was observed sitting at the break table
with his feet propped up eating a full meal, and when Team Lead I asked
if he had started new break hours, Complainant replied, "Close enough."
4. In June 2005, Complainant had to be counseled by his Supervisor on his
attitude and the way he treated others, about listening to management,
and performing his duties.
5. On July 7, July 16, and August 10, 2005, Complainant had to be
counseled by his Supervisor about remaining in his designated shop area
and/or staying off the shop bicycle and shop cart because he drove them
in a reckless manner.
6. On July 16, 2005, Complainant was observed sleeping during duty hours
at the road test area
7. On November 16, 2005, when Team Lead II requested that he perform
a task assignment, Complainant responded, "Let me tell you how we do
things out here," and "You don't run this area," and refused Lead II's
request to go see the Supervisor.
See Report of Investigation (ROI), at 92-94.
On June 13, 2006, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability when it
removed him from his job. The complain was accepted for investigation,
and at the conclusion thereof, Complainant was provided with a copy of
the report of investigation and notice of his right to request a hearing
before an EEOC Administrative Judge (AJ), or in the alternative, a final
decision on the record from the Agency. Complainant requested a decision
from the Agency. The Agency issued its decision on November 8, 2007, in
which it found Complainant had not been discriminated against as alleged.
Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Supervisor and Team Lead
I and II did not understand the full nature of his medical condition
because although they had accommodated other individuals with diabetes by
allowing them to eat snacks throughout the day, he had Type I diabetes,
a form of diabetes more severe than Type II, and needed to eat full meals
to consume enough nutrients to keep him healthy. He also contends that
when his sugar levels got low, he often became disoriented, which caused
him to lose the reality of situations and act very childishly. Further,
he states that when he was caught sleeping on the job he had actually
passed out because his sugar levels were not balanced. Finally,
Complainant contends that when he left his work station it was to get
something to eat, as it was a hazard to keep and consume food on the
work floor because of the type of work he did and the hot temperatures
in which he had to work.
The Agency contends that Complainant did not file his appeal within
30 days. Specifically, the Agency contends that Complainant's appeal
should be dismissed because he filed it 39 days after the final decision.
Alternatively, the Agency contends that Complainant was not discriminated
against and requests that we affirm its decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard
of review "requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker," and that EEOC "review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
ANALYSIS AND FINDINGS1
Contentions on Appeal
We first address the parties' contentions on appeal. Complainant's
contentions are an inherent part of his case in chief, and as such,
are addressed in the "Reasonable Accommodation" and "Termination"
portions of this decision. The Agency's contention that Complainant's
appeal was filed late is not born out in the record. The Agency claims
that Complainant filed his appeal on December 17, 2007, which is 39 days
from November 8, 2007, the date of the final decision. The record shows
that Complainant filed his appeal on December 11, 2007, and with a five
day presumption (the amount of time we presume it takes for a mailed
decision to reach an intended recipient) we find that Complainant filed
his appeal within the required 30-day timeframe. We therefore reject
the Agency's request to dismiss this appeal.
Reasonable Accommodation
Pursuant to the Commission's regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an
Agency can show that reasonable accommodation would cause an undue
hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. A reasonable
accommodation must be effective. See U.S. Airways v. Barnett, 535
U.S. 391, 400 (2002). "[T]he word 'accommodation' ... conveys the need
for effectiveness." Id. "An ineffective 'modification' or 'adjustment'
will not accommodate a disabled individual's limitations." Id. In the
context of job performance, this means that a reasonable accommodation
enables the individual to perform the essential functions of the position.
EEOC Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act (rev. Oct. 2002).
Management, namely the Supervisor and Team Leads I and II, stated that
they were aware of Complainant's condition, and indicated to him that he
could eat snacks at anytime throughout the day to regulate his glucose
levels. The Supervisor stated that he could not allow Complainant to
eat full meals throughout the day in the break room because it interfered
with the flow of the work that needed to be performed. See ROI at 164.
He expressed frustration that Complainant would not even consume his
meals at his work station but always went to the break room to sit down
and eat. The Supervisor indicated that because Complainant insisted on
eating full meals in the break room, he told Complainant that if he got a
doctor's statement indicating that he had to sit down to eat his meals,
he would allow it. He further indicated that Complainant did not bring
in a doctor's statement. Id.
The Agency is not required to provide an accommodation which Complainant
fails to establish is necessary to enable him to perform the essential
functions of his position, or to gain equal access to a benefit
or privilege of employment. Frische v. Dep't of Def., EEOC Appeal
No. 0120071609 (Jul. 1, 2009) (citing McGuffin vs. U.S. Postal Serv., EEOC
Appeal No. 01A14173 (Dec. 3, 2002)). We note that the record is devoid
of evidence indicating that Complainant's condition required him to sit
down and eat full meals in order to regulate his glucose. Based on a
review of the evidence, we find that the Agency did not deny Complainant
a reasonable accommodation because Complainant failed to establish a
link between his condition and the requested accommodation. See Frische,
Appeal No. 0120071609 (citing Smith v. U.S Postal Serv., EEOC Appeal
No. 0120055839 (Oct. 18, 2007); Brown v. U.S. Postal Serv., EEOC Appeal
No. 01A42650 (Sept. 2, 2004).
Termination
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in
this case because the Agency articulated legitimate and nondiscriminatory
reasons for its conduct (see numbers one through seven on page two of
this decision). See U. S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request
No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC
Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (Dec.14, 1995).
Complainant attempts to prove that the Agency's reasons for his
termination were pretext for discrimination by arguing that the Agency
failed to accommodate his disability and providing affidavits from
co-workers indicating that he was a good employee. Complainant's first
offer of proof is addressed in the "Reasonable Accommodation" portion of
this decision and need not be revisited here. His second offer of proof,
the opinions of coworkers, does not undercut the determination of the
Supervisor and Team Leads regarding his performance; it is therefore
insufficient to meet his burden to establish pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
Complainant has failed to prove he was discriminated against as alleged.
We therefore AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 18, 2011
Date
1 For purpose of analysis, we will assume without so finding that
Complainant is an individual with a disability entitled to coverage
under the Rehabilitation Act.
??
??
??
??
2
0120080945
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080945