0120090472
02-26-2009
Lee E. Chatman, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Lee E. Chatman,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120090472
Agency No. 08.019
DECISION
Complainant appeals to the Commission from the agency's decision dated
September 24, 2008, finding no discrimination. In his complaint,
filed on November 28, 2007, complainant, a Warehouse Worker at the
agency, Redstone Arsenal, Alabama, alleged discrimination based on
race (African-American), sex (male), age (over 40), disability, and in
reprisal for prior EEO activity when he was subjected to a hostile work
environment beginning September 25, 2007, and thereafter, which led to
his being forced to retire effective March 21, 2008.
After completion of the investigation of the complaint, complainant did
not request a hearing. The agency then issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incidents. The agency stated that the duties for the
Warehouse Worker required receiving and processing merchandise, supplies
and receipts through appropriate systems using a virtual domain terminal
(VDT) or personal computer (PC) or other equipment. The position
also required the completion of various merchandising documents and
reports, either manually or by appropriate systems using VDT/PC or
other equipment. The physical effort for the position also included
working on hard surfaces and areas which required standing, stooping,
bending and work in tiring and uncomfortable positions. The position
also entailed lifting and carrying items that weigh up to 40 pounds.
Complainant's supervisor stated that prior to January 2007, they
had another warehouse worker who could input the information into
the computer, but that individual's position was eliminated and that
individual was reassigned to the Main Exchange. The supervisor indicated
that thereafter she and other managers used their personal time to input
merchandise invoices into the computer because complainant refused to
use the computer despite attempts to train him. On September 25, 2007,
the supervisor gave complainant the communication at issue about invoices
not being processed into the computer.
Complainant indicated that he was harassed by management when he was
asked for medical documentation when they were already aware about
his medical conditions. Specifically, complainant claimed that he
needed assistance inputting invoices into the computer system, loading
merchandise into customer's vehicles, and unloading vendor's trucks.
Complainant stated that although he received computer training twice,
it was unsuccessful since he had a learning disorder in operating a
computer and due to his sensitive eyes looking at a computer screen.
Complainant requested that he not be compelled to perform tasks that he
was unable to do.
Assuming (without deciding) complainant was an individual with a
disability, we find that he was not a qualified individual with a
disability since he could not perform the essential functions of
his position with or without reasonable accommodation. 29 C.F.R. �
1630.2(m). Furthermore, complainant has not shown, and the record does
not indicate, that there was any vacant funded position that met his
medical restrictions. The agency indicated that complainant's retirement
was due to his inability to continue working due to his impairments and
not that he was forced to retire. With regard to complainant's claim
of harassment, we find that he failed to establish the severity of the
conduct in question or that it was related to any protected basis of
discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
2/26/09
__________________
Date
2
0120090472
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013