Todd S. Snyder, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A12103 (E.E.O.C. Sep. 18, 2002)

01A12103

09-18-2002

Todd S. Snyder, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Todd S. Snyder v. Department of the Navy

01A12103

September 18, 2002

.

Todd S. Snyder,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A12103

Agency No. 98-00251-071

Hearing No. 380-99-8185X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final

order concerning his equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission AFFIRMS the agency's final

order.

BACKGROUND

The record reveals that complainant, a Heavy Mobile Equipment Mechanic,

WG-5803-10, at the agency's Puget Sound Naval Shipyard, Bremerton,

Washington, filed a formal EEO complaint on May 8, 1998, alleging that

the agency had discriminated against him on the basis of disability

(permanent physical limitations-right leg) when:

(1) Management failed to accommodate his physical disability by assigning

him duties that required long periods of standing.

On or about March 10, 1998, complainant was asked to sign a performance

rating for Heavy Mobile Equipment Mechanic, WG-5803-10, although he

was on limited duty and was not performing those duties.

Complainant performed the duties of an Assistant Planner and Estimator,

WD-06, without being paid to do so.

Complainant was involved in a serious motorcycle accident and suffered

multiple injuries. As a result of his injuries, complainant has permanent

physical limitations affecting his ability to stand, walk, climb, crawl,

and stoop. After returning to work, complainant had been assigned

to several different limited duty jobs. From September 1997 through

May 1998, complainant was assigned in crane operations to do assistant

planner and estimator duties for a supervisor (S1).<2> S1 stated that

complainant did an adequate job, but never performed at the level of

a Planner and Estimator. During this period, complainant received his

Heavy Mobile Equipment Mechanic, WG-5803-10, pay, and not the wages he

alleged he was due for performing higher level duties at a WD-6 level.<3>

Prior to complainant's assignment in crane operations, a planning

branch Assistant Planner and Estimator, WD-6 (C1), was assigned to crane

operations.<4> C1 requested a classification desk audit believing that

the duties warranted a WD-8 level. The desk audit found the duties

to be at a GS-5 to GS-7 level, and not a WD-8 or even a WD-6 level.

After complainant left the position in May 1998, two persons assumed his

duties, both of whom were permanent Assistant Planner and Estimators,

who did not have disabilities, and were paid at the WD-6 grade.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding that

complainant had established a prima facie case of discrimination due

to disparate treatment on the basis of disability; that the agency had

articulated legitimate, nondiscriminatory reasons for its decision to

not pay complainant at the WD-6 level, and that complainant failed to

establish that the agency's reasons were pretextual. The agency's final

order implemented the AJ's decision. Thereafter, complainant filed an

appeal limited to issue No. (3)-Failure to pay for performing higher

level duties at a WD-6 level.

CONTENTIONS ON APPEAL

Complainant contends on appeal that the agency ignored complainant's

request to be detailed temporarily to the Assistant Planner and Estimator,

WD-06, position while assigned to do the work of the position, and that

the AJ erred in not making a finding and conclusion that complainant

should have been paid as an Assistant Planner and Estimator, WD-06.

In response, the agency states that the AJ did not err in finding that

the agency successfully rebutted the presumption of discrimination,

that the agency produced legitimate, nondiscriminatory reasons for

its decision to pay complainant at the WG-10 pay scale, and did not

discriminate against complainant.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). First, complainant must establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

The AJ found that complainant had established a prima facie case of

disability discrimination. Next, the AJ found that the agency had the

policy and practice of paying employees on collateral or transient

duty, i.e., assigned to temporary jobs and not filling a vacant,

funded position, at the wage level of their own permanent position.

An agency representative testified that complainant was carrying out

a work assignment, and was not filling a position. Further, the AJ

found that complainant did not offer any evidence that other employees

were paid differently from the pay scale of their permanent position.

Concerning pretext, complainant testified that he should have been paid

the same wage as the C1, and the two persons who came after him. Although

there was testimony that C1 and complainant did not do the exact same

duties; and that the subsequent employees did not replace complainant,

the AJ found that each was paid at the pay scale of their permanent

position. The AJ found complainant did not produce sufficient evidence

to show that the agency's pay/wage practice and policy was pretextual.

Further, concerning complainant contention on appeal, complainant did

not establish that the agency had an obligation to detail complainant

to a WD-6 position.

CONCLUSIONS

The Commission finds that the AJ's findings of fact are supported by

substantial evidence in the record and that the AJ's decision properly

summarized the relevant facts and referenced the appropriate regulations,

policies, and laws. We discern no basis to disturb the AJ's decision.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final order.

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

September 18, 2002

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 Complainant testified that he did not request any accommodation while

performing his assigned duties because no accommodation was necessary.

The agency does not dispute that complainant is physically disabled.

3 It is undisputed that the wage rate of a WD-6 is higher that a WG-10.

4 The AJ found that C1 had a disability and therefore was not a

comparator.