01A24187
10-09-2003
Raul J. Dominguez, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Raul J. Dominguez v. Department of the Navy
01A24187
October 9, 2003
.
Raul J. Dominguez,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A24187
Agency No. 01-65888-026
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 decision.
The record reveals that during the relevant time, complainant was employed
as a Planner and Estimator (Sheet Metal Mechanic-Aircraft) at the agency's
Naval Aviation Depot, North Island, San Diego, California. Complainant
sought EEO counseling and subsequently filed a formal complaint on
April 9, 2001, alleging that he was discriminated against on the bases
of disability and age (D.O.B. 8/7/58) when he was forced to change to
a lower grade after his request for a reasonable accommodation was denied.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. In its FAD, the
agency concluded that complainant was not a qualified individual with a
disability. Specifically, the agency found that travel was an essential
function of the Planner and Estimator position and complainant was unable
to travel.
On appeal, complainant contends that the agency never attempted to
accommodate him. He concedes that he could not perform the Planner
and Estimator position because of the travel requirement but asserts
that he requested to be transferred to a comparable position that did
require travel. The agency requests that we affirm its FAD.
For the purpose of this decision, we assume without finding that
complainant is an �individual with a disability� within the meaning of
the Rehabilitation Act.<1> We next determine whether complainant has
met his burden of proof to establish that he is a "qualified individual
with a disability" within the meaning of the Rehabilitation Act.
An individual with a disability is "qualified" if he satisfies the
requisite skill, experience, education and other job-related requirements
of the employment position such individual holds or desires, and with
or without accommodation, can perform the essential functions of such
position. 29 C.F.R. � 1630.2(m); see also 29 C.F.R. 1630.3 (exceptions
to definition). With respect to whether complainant is a qualified
individual with a disability, the inquiry is not limited to the position
actually held by the employee, but also includes positions that the
employee could have held as a result of job restructuring or reassignment.
See Van Horn v. United States Postal Service, EEOC Appeal No. 01960159
(October 23, 1998).
The Commission notes that reassignment is the reasonable accommodation
of last resort and is required only after it has been determined that:
(1) there are no effective accommodations that will enable the employee
to perform the essential functions of his current position, or (2) all
other reasonable accommodations would impose an undue hardship. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, (rev. Oct. 17,
2002) (Guidance). Further, an agency must reassign an individual to a
vacant position equivalent in terms of pay, status, and other related
factors, including benefits, if the employee is qualified therefor. Id.
If there are no vacant equivalent positions, then an agency must reassign
the individual to a vacant lower level position. Id.
The record reveals that complainant applied for and was selected on
February 27, 2000, for a position as a Planner and Estimator (Sheet
Metal Mechanic-Aircraft). The position description for this position
stated that it involved frequent world-wide travel to remote crash sites,
shore establishments and ships at sea. It further stated that it may
require travel and work outside the regular workday and workweek due to
the urgency of the work.
Complainant's third-level supervisor stated that while the complainant
was on a temporary assignment (TDY), he requested between 32 and 40 hours
of leave to conduct personal business which his first-level supervisor
denied. Thereafter, complainant faxed a note to his first-level
supervisor stating that, "due to the requirements of excessive travel,
stress conditions and personal health problems, I am resigning from my
position as Planner and Estimator, effective immediately." He requested
to be returned to his previous position as a Sheet Metal Mechanic.
Thereafter, on December 1, 2000, he withdrew his request and asked to
be placed in a Planner and Estimator position in a different division.
However, on December 19, 2000, the record shows that he again requested
to be returned to his previous position stating that he was unable to
travel due to his diabetes. Complainant was returned to his Sheet Metal
Mechanic position on December 31, 2000.
Here, complainant concedes that he could not travel because of his
diabetes. The record clearly establishes that travel was an essential
function of the Planner and Estimator position, and there were no Planner
and Estimator positions that did not require travel. Complainant asserted
that another Planner and Estimator refused to travel. The record reveals
that the other Planner and Estimator (back problem, D.O.B. 3/28/48)
did not travel. However, complainant's supervisor stated that the other
Planner and Estimator was disciplined and given a notice of termination.
Complainant has been unable to demonstrate that there was a Planner
and Estimator position that did not require travel or that there was a
vacant, funded position, equivalent in terms of pay, status, and other
related factors, for which he was qualified and to which he could have
been reassigned. Accordingly, we find, based on the evidence contained
in the record before us, that the agency's reassignment of complainant
to his former position was proper, and we conclude that the agency is
not liable for a violation of the Rehabilitation Act.
Finally, we conclude that complainant failed to prove, by a preponderance
of the evidence, that the agency was motivated by age-based animus.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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 9, 2003
__________________
Date
1An "individual with a disability," under the Rehabilitation Act,
is defined as one who: (1) has a physical or mental impairment that
substantially limits one or more major life activities of such individual;
(2) has a record of such impairment; or, (3) is regarded as having such
an impairment. EEOC Regulation 29 C.F.R. � 1630.2(g).