Raul J. Dominguez, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 9, 2003
01A24187 (E.E.O.C. Oct. 9, 2003)

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).