0120060499
09-11-2008
Rodgerick C. Holmes, Sr, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Rodgerick C. Holmes, Sr,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01200604991
Agency No. P-2004-0194
DECISION
On October 19, 2005, complainant filed an appeal 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. When complainant filed the present appeal on October 19,
2005, the agency had not yet issued a final decision on his case prior
to his appeal. The agency subsequently issued a final decision dated
March 1, 2006, finding complainant was not subjected to discrimination.
The Commission finds that although complainant's appeal was initially
premature, it is now appropriate to consider whether the agency properly
found no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Correctional Services Lieutenant, GS-11, at the agency's Federal
Correctional Institution (FCI) in Yazoo, Mississippi. The record reveals
that complainant suffered an injury to his back on November 14, 2002, when
a desk fell on him at work. Thereafter, complainant was given a Temporary
Alternative Duty assignment (TAD) monitoring inmate telephone calls in the
control center. Complainant remained in the TAD assignment until November
14, 2003, when he was returned to full duty as a lieutenant.
Complainant filed an EEO complaint dated May 13, 2004, alleging that he
was discriminated against on the bases of disability (back injury), age
(42), and in reprisal for prior protected EEO activity when: between
November 14, 2003, and June 1, 2004, management officials failed to
accommodate complainant's disabilities, forced him into an "unsuitable
position," and denied his requests for annual leave, leave without pay
(LWOP), and advanced sick leave.
At the conclusion of the investigation, 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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
In its final decision, the agency assumed complainant was an individual
with a disability. The agency determined that management did not
discriminate against complainant when they returned him to full duty
status. The agency noted that based on the most current medical report
dated September 16, 2003, complainant's doctor, Doctor A, restricted
complainant to lifting nothing over 25 pounds with modified duty status.
The agency noted that the OWCP Committee found that the medical report
did not cite any restrictions that would keep complainant from returning
to full duty status as a lieutenant. The agency noted that the Safety
Manager stated that the 25- pound lifting limitation meets the minimum
standard to return complainant to full duty status. The agency stated
that Doctor A had been asked for a full diagnosis and prognosis in
August 2003, but when the agency's doctor, Doctor B, contacted Doctor
A to request updated medical information, Doctor A stated that he
was not authorized to release complainant's medical information to
the agency. The agency noted complainant allowed the release of his
medical restrictions on September 16, 2003, when he realized management
would be returning him to full duty status. The agency claims the
September 16, 2003 documentation did not substantiate why complainant
needed the accommodation to remain on modified duty status since his
lifting restriction met the minimum standard to work as a lieutenant.
Further, the agency notes complainant was given another opportunity
to provide updated medical information that would allow him to remain
on modified duty on November 13, 2003. However, complainant did not
submit any documentation and complainant was returned to full duty as
a lieutenant.
With regard to complainant's claim that he was subjected to retaliation
when the agency returned him to full duty, the agency states that
showing that management officials were interviewed about complainant's
EEO complaint the same week as the Workers' Compensation assessment
was made does not provide evidence to support a finding of retaliation.
With regard to complainant's claim that he was subjected to discrimination
based on his age when the agency returned him to full duty, the agency
noted there is no evidence that the agency decided to return complainant
to full duty status based on his age.
Complainant also claims that on March 12, 2004, management changed his
schedule to the evening shift, 4:00 p.m. to 12:00 midnight. Complainant
states that on March 14, 2004, he received a 4:30 a.m. call stating
he needed to work the day shift. Complainant reported and worked the
day shift; however, his replacement did not show and complainant had to
work a 16-hour day. The agency noted the record shows that for the week
of March 14, 2004, management expected there to be an overtime watch
and informed employees of such in an electronic mail message noting
that "if the overtime is not filled, the day watch operations is to
be adjusted to evening watch." Complainant's replacement on March 14,
2004, missed her watch and as a result complainant had to work overtime.
The agency stated there is no evidence to indicate the agency's actions
were based on a prohibited factor.
With regard to complainant's claim that he was subjected to discrimination
when management denied him annual leave the week of Thanksgiving,
the agency states that it presented a legitimate, non-discriminatory
reason for its action, that complainant had verbally cancelled his leave
request when he was working on TAD, with holidays and weekends off.
The agency noted that complainant had only 16 hours of annual leave
available for use during Thanksgiving week. The agency noted in a
November 19, 2003 memorandum complainant acknowledged he only wanted to
take leave on Wednesday and Thursday of Thanksgiving week. The agency
stated complainant originally spoke with Captain X regarding his leave
request who denied the leave request. The agency noted complainant then
spoke with the Warden and the Associate Warden about the leave request.
The agency states as a result, there was a meeting with Captain X, the
Associate Warden, and complainant and that during the meeting Captain X
noted that complainant did not have enough time to take off the week of
Thanksgiving and stated complainant verbally agreed to take off only on
Friday. The agency stated that following the meeting, Captain X granted
complainant leave only on Thanksgiving day, Thursday, November 27, 2003.
The agency stated that the dispute between Captain X and complainant arose
because Captain X took exception to complainant requesting leave from
the Associate Warden and the Warden after Captain X denied his request.
The agency noted that Title VII does not cover personality conflicts.
With regard to complainant's claim that he requested leave on December
7, 2003, the agency stated that Captain X initially denied the request,
but then he granted complainant's request. The agency stated although
complainant was upset since he did not learn that the leave request was
granted until he was commuting to work on December 7, 2003, it argued
complainant did not suffer an adverse action since the leave request
was granted.
Complainant also claims that he was subjected to discrimination when
the Warden denied his request for advanced sick and annual leave on
December 8, 2003. The agency noted complainant requested 160 hours
of advanced sick leave and 80 hours of annual leave until management
approved his claim for repurchasing sick leave and annual leave he
already used and his Workers' Compensation claims. The agency stated
that complainant's advanced leave requests were denied since complainant
did not submit additional medical or other documentation to substantiate
advanced leave.
The agency noted that following a January 19, 2004 on the job injury,
complainant requested LWOP from January 21, 2004, to February 7, 2004.
The agency noted that the Warden granted complainant LWOP until he could
see Doctor A. Specifically, complainant's request for LWOP from January
21, 2004, through February 7, 2004, was granted. The record reveals
complainant saw Doctor A on January 26, 2004, who noted that complainant
had improved since last week and stated complainant's restrictions were
unchanged. The agency stated that since complainant could still lift 25
pounds, the Warden saw no reason to grant complainant additional leave.
The agency claimed there is no evidence that the agency's actions were
motivated by discriminatory animus.
With regard to complainant's claim that Doctor B improperly called Doctor
A, the agency states complainant did not establish a prima facie case of
retaliation since Doctor B did not have knowledge of prior EEO activity
by complainant.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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").
Upon review, with regard to complainant's claim that the agency placed
him in an "unsuitable" lieutenant position and failed to accommodate
his disability, we find that complainant failed to show that he was
forced to work beyond his medical restrictions between November 14,
2003, and June 1, 2004.2 With regard to complainant's claim that the
agency changed his schedule on March 14, 2004, we note that the agency
presented a legitimate, non-discriminatory reason for its actions which
complainant failed to show was a pretext for discrimination. Further,
we note complainant does not contend that he was not paid for working
overtime on March 14, 2004. Additionally, we find complainant did not
show that the agency's articulated reasons for denying him annual leave
on November 26, 2003, denying him advanced leave on December 8, 2003
(for 160 hours of advanced sick leave and 80 hours of annual leave), or
denying him LWOP from February 8, 2004, through February 21, 2004, were
a pretext for prohibited discrimination. With regard to complainant's
claim that the agency subjected him to discrimination when it denied his
request for annual leave on December 7, 2003, we find that complainant
was not subject to an adverse action since his request was granted.
Finally, complainant failed to show that he was subjected to prohibited
retaliation when Doctor B contacted his doctor to inquire about his
medical restrictions in an effort to address his request to remain
on light duty as an accommodation for his claimed disability. To the
extent complainant is claiming that the agency violated the Privacy Act
when it contacted Doctor A, we note that such a claim is outside the
Commission's jurisdiction.
Accordingly, the agency's final decision finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
September 11, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 We do not address in this decision whether complainant is a qualified
individual with a disability.
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0120060499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120060499