0120064456
01-07-2009
Terry L. Grant, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Terry L. Grant,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200644561
Hearing No. 140-2006-00011X
Agency No. 056592301413
DECISION
On July 25, 2006, 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sheet Metal Worker, WG-3806-08 with the agency's Naval Air Depot
in Cherry Point, North Carolina.
On July 29, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability (Chronic Lower Back
and Knee Pain) when:
Management issued complainant a Job Placement Offer downgrading
him from the position of Sheet Metal Worker, WG-3806-08,
to the position of Sheet Metal Mechanic Helper, WG-3806-05,
on June 24, 2005.
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). Complainant requested
a hearing and the case was assigned to an AJ. On June 6, 2006, the
AJ dismissed complainant's hearing request for failure to submit a
pre-hearing report as required in a February 24, 2006 Scheduling Notice
and Order. On June 8, 2006, the AJ remanded the complaint to the agency
for the issuance of a final decision on the merits of the complaint.
Complainant filed the present appeal on July 25, 2006. On appeal
complainant states that he has shown that he was reduced in rate and pay
because of his disability. Complainant further states that he remains
doing the same job as other WG-08 and WG-10 personnel in the shop with
the same responsibilities but is paid at a lower WG-05 rate.
Thereafter, on August 11, 2006, the agency issued a final decision
pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that
complainant failed to prove that he was subjected to discrimination as
alleged.
In response to complainant's appeal, the agency argues the appeal
should be dismissed as premature. Alternatively, the agency requests
the Commission affirm its finding that complainant was not discriminated
against as alleged.
ANALYSIS AND FINDINGS
Although complainant's appeal was filed prior to the issuance of the
agency's final decision, we note the agency subsequently issued a final
decision finding no discrimination. We find it appropriate to address
whether the agency properly found no discrimination.2
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 of the record, assuming complainant was substantially
limited in a major life activity, we find he has not established that the
agency discriminated against him with regard to the alleged actions.3
The record reveals that on October 27, 2004, complainant presented
a statement from the Department of Veterans Affairs Medical Center
stating that he could not be on his feet more than two hours at a time.
The statement also stated complainant was under the care of a podiatrist.
On November 17, 2004, complainant's podiatrist provided complainant's
medical limitations from November 17, 2004, through May 17, 2005 as:
no climbing on scaffolding, ladders or aircraft; no climbing stairs; no
prolonged walking or standing over two hours; and alternate sitting and
standing as needed. On May 22, 2005, complainant provided a statement
from the VA Primary Care Clinic requesting permanent light duty for
complainant and noting that he cannot kneel, squat or stand more than
two hours per day and cannot climb on stairs or aircraft. The position
description for WG-08 Sheet Metal Worker states the physical requirements
of the position are based on the "arduous and hazardous nature of the
duties typically performed by sheet metal worker (aircraft)." The record
reveals that the position requires frequent walking or standing, climbing,
kneeling, bending, sitting, reaching above shoulder, moderate lifting and
carrying from 15-44 pounds, and may require work in cramped conditions.
The record contains the affidavits of the Airframes Division Director
and the Civilian Personnel/Manpower Division Director who both stated
that based on his permanent medical limitations, complainant could not
perform the essential functions of the WG-08, Sheet Metal Mechanic
Worker position. In his affidavit, the Airframes Division Director
stated that "most of the WG-08s in [his] Division are required [to]
perform work directly on the aircraft and that WG-08 level work requires
climbing on the aircraft and kneeling, standing or bending in awkward
positions for long periods of time." Upon review of the record, we
find that complainant could not perform the essential functions of the
WG-08, Sheet Metal Worker position. Further, we note that the agency
accommodated complainant by offering him the position of WG-05, Sheet
Metal Mechanic Helper, which complainant accepted.
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 (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
January 7, 2009
__________________
Date
1 This appeal has been re-designated with the above-referenced appeal
number.
2 We note complainant did not challenge the AJ's dismissal of his
request for a hearing. We note the Commission has held that dismissing
a hearing request is an appropriate sanction for failure to comply with
an AJ's Order.
3 We do not address in this decision whether complainant is an individual
with a disability.
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0120064456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120064456