01973700
06-08-1999
Michael R. Williams, Appellant, v. Richard J. Danzig Secretary, Department of the Navy Agency.
Michael R. Williams, )
Appellant, )
) Appeal No. 01973700
v. ) Agency No. DON 95-00251-028
) Hearing No. 380-96-8054X
Richard J. Danzig )
Secretary, )
Department of the Navy )
Agency. )
)
)
DECISION
The Appellant filed a timely appeal from a final agency decision which
found no discrimination in his equal employment opportunity (EEO)
complaint on the bases of sex (male), and physical disability, in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791, et seq. The Appellant alleges he was discriminated against
when he was terminated from his position as an Insulator Helper. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is AFFIRMED.
The record reveals that the appellant, a former temporary hire as an
Insulator Helper at the agency's Puget Sound Naval Shipyard, Bremerton
Washington, filed a formal EEO complaint with the agency on March
31, 1995, alleging that the agency had discriminated against him as
referenced above. At the conclusion of the investigation, the appellant
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) after a hearing, finding no
discrimination.
The Administrative Judge concluded that the appellant failed to establish
a prima facie case of discrimination because he failed to establish that
he was a qualified disabled employee within the meaning of the statute.
His conclusion was based on the fact that the appellant suffered from a
temporary condition as a result of an on-the-job injury. Since he was
not disabled within the meaning of the law, the AJ found that the agency
was not required to accommodate him. The AJ further found that he could
not draw an inference of sex discrimination from the evidence available
because it showed that there were persons both within as well as outside
of his protected group who had been treated favorably and unfavorably.
The agency's final decision adopted the AJ's recommended decision. The
agency did not submit further statements on appeal.
The appellant makes no new contentions on appeal but rather restates
the arguments he made at the hearing.
After a careful review of the record, the Commission finds that the AJ's
recommended decision correctly applied the law to the facts of this case.
In a complaint alleging discrimination based on a physical disability,
the appellant must first establish that he or she is a member of the
class of persons protected by the Rehabilitation Act of 1973. A person
with a disability is one who has a physical or mental impairment which
substantially limits one or more of that person's major life activities.
29 C.F.R. �1614.203(a).
Here, the appellant alleges that he is disabled within the meaning of the
Act because he suffered an on the job injury from operating pneumatic
equipment which vibrated on a continuous basis. His condition was
diagnosed as lateral epicondylitis of the left arm also referred to
as tendonitis, and mild carpal tunnel syndrome of the left wrist.<1>
The appellant states he was advised by a medical specialist that his arm
would not get better unless he stopped operating the pneumatic tools.
The evidence in the record revealed that the appellant's condition
eventually healed after he had left the agency's employment.
We conclude that the appellant's condition was not a disability within the
meaning of the law because it was a temporary condition that prevented
him from performing only a particular job and not a wide range or class
of jobs or tasks. Generally, conditions that last for a few days or
weeks and have no permanent or long-term effects on health are not
substantially limiting impairments under the law. Albert Schultz v.
United States Postal Service, Request No.05950724 (September 26, 1996).
Furthermore, the record establishes that during the time that he was
medically restricted from operating the various tools for removal of
insulation, the agency found other work for him such as building concrete
forms and pouring concrete. Consequently, he was not substantially
limited from working and his condition would not fall within the legal
definition of disabled. 29 C.F.R. �1630.2(j)(3).
The agency also provided testimony at the hearing that the appellant
was hired on a temporary basis for one year. At the time of his one
year anniversary, his employment was reviewed and it was decided that
he would be terminated along with 57 other temporary employees because
the workload had been reduced. Thus the agency provided a legitimate
nondiscriminatory basis for his termination that the appellant was unable
to refute by a preponderance of the evidence.
We also affirm the agency's finding of no discrimination on the basis
of sex because there was evidence provided by the appellant as well as
the agency that both men and women were terminated and both sexes were
hired on a permanent basis. The work force profile indicated that this
working group was mostly male such that of the terminations and permanent
hires, the highest percentages were among males in both categories.
The data also showed that of the temporary hires who were retained, 7%
were female whereas 93% were males. The appellant failed to refute this
data and in this regard, failed to establish that males were treated
less favorably in being hired on a permanent basis.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
6/8/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The appellant
withdrew his claim regarding his middle finger
of his right hand at the hearing.