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.