01a50899
04-25-2005
Thomas R. Storkamp, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Thomas R. Storkamp v. Department of the Army
01A50899
04-25-05
.
Thomas R. Storkamp,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A50899
Agency No. BODNFO0202C0030
Hearing No. 140-2003-08166X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against him on the
bases of his disability (compression fracture in back) and sex when:
in January 2002, he received a memorandum requesting additional medical
information from him, essentially stating that, unless he was able
to perform all the duties of his position, he was at risk of being
removed;<1> and
he was removed from his work area while females with similar disabilities
were allowed to work.<2>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.<3>
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
___04-25-05_______________
Date
1 While the memorandum requested additional
medical information from complainant, regarding his ability to perform
�all the duties of his position,� the record reflects that the agency
was trying to ascertain which of his essential duties he could perform.
Complainant's restrictions included no lifting above 20 pounds and no
unassisted pushing of gurneys with patients, and the Officer in Charge
was concerned that, as a Practical Nurse in the Ambulatory Surgery Unit,
complainant's ability to safely perform the duties of his position was
hindered due to his restrictions.
2 The record reflects that the comparators complainant identified as
being allowed to remain in their original positions were not similarly
situated to complainant because those female employees had temporary
restrictions, whereas complainant's were permanent. Nonetheless,
the agency offered complainant positions in an administrative field,
which would have resulted in a higher grade, but complainant refused
those positions.
3 We assume without finding, for the purposes of analysis only, that
complainant is an individual with a disability.