Complainant,v.Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Apr 4, 2014

0120130611 (E.E.O.C. Apr. 4, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 0120130611

Hearing No. 510-2010-00349X

Agency No. DECA-00187-2009

DECISION
Complainant filed an appeal from the Agency’s October 9, 2012 Final Order concerning her
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. For the following reasons, the Commission AFFIRMS the Agency’s
Final Order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part Time Store
Worker (Produce Department) at the Agency’s Eglin Air Force Base Commissary facility in
Florida. On October 29, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (spinal stenosis and chronic cervical neck
pain) when she was subjected to harassment that included the following incidents:

(a) On November 22, 2008, and February 29, May 23, and July 15, 2009, Complainant
was charged absent without leave (AWOL) on days she was not scheduled to work;

(b) On January 17, February 28, March 14, March 28, and April 11, 2009, Complainant
was charged leave without pay (LWOP) on days she was not scheduled to work;

(c) On March 14, March 28, and April 11, 2009, Complainant was forced to sign a request
for leave to receive her work schedule;

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(d) On January 17, and July 15, 2009, Complainant’s time sheet signature was processed
without her signature;

(e) On March 3, June 1, and August 26, 2009, Complainant was placed back on full duty
without a doctor's release; and

(f) Between June 21 and July 18, 2009, Complainant’s work schedule was constantly
changed.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on
June 7 and 8, 2012. The AJ issued a decision finding no discrimination on September 12,
2012.

In her Decision, the AJ found that Complainant underwent surgery for her neck in November
2008. Thereafter, the AJ noted, Complainant was released to return to work on January 3,
2009. Complainant’s physician specified a 20-pound lifting restriction. Her physician further
stated that Complainant was expected to return to full duty in 90 days. Complainant’s
restrictions were revised and clarified in March 2009, to a 30-pound lifting restriction and a
prohibition against repetitive, continuous lifting for another nine months. The AJ found that
these restrictions remained in effect during the time the events described in her complaint
occurred. The AJ noted that Complainant also considered her restrictions to include the lifting
restrictions, plus no pushing, pulling, or dragging items of more than 30 pounds.
The AJ found that Complainant was not able to perform the essential functions of the position
either with or without an accommodation. The AJ found that lifting was an essential function
of Complainant’s position because Complainant duties included stocking products on shelves,
using a cart or pallet jack to move products, moving stock to storage areas of the store,
rotating produce by disposing of damaged, spoiled or out of date products, and stacking
containers, among other duties. The AJ found that the physical effort of the position required
walking, standing, bending, stooping, and the use of arms to fill shelves and included the
lifting of heavy boxes or crates sometimes more than 50 pounds.
The AJ found that Complainant’s 30-pound lifting restriction meant that Complainant was
unable to “break down” the daily deliveries that arrived on a truck each morning and because
she was restricted from repetitive or continuous lifting, she could not stock, rotate, or cull the
produce which duties would have required her to lift, push, or pull continually. The AJ
observed that Complainant admitted she could not perform these functions during the time of
the events at issue in the complaint. The AJ found that keeping the produce area stocked was
the objective of Complainant’s position and that the duties described were the tasks essential to
this objective. Removing these duties, the AJ found, would fundamentally alter Complainant’s
position as a Store Worker in the produce department.
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The AJ considered that the Agency had attempted to accommodate Complainant’s restrictions
by: restructuring her job so that she could ask for help from co-workers as needed; she was
permitted to take breaks; and she was permitted to break bigger loads into smaller loads within
her lifting restrictions. However, the AJ found that Complainant rejected these
accommodations because the repetitive and continuous nature of the modified or restructured
duties still violated her medical restrictions. The AJ considered Complainant’s contention that
she should have been assigned to other duties, such as ordering produce, culling produce, and
preparing trays of fruits and vegetables. The AJ noted that culling produce still required
repetitive motions and pushing or pulling garbage buckets weighing up to 80 pounds.
Ultimately, Complainant rejected the accommodations the Agency offered because of her
medical restrictions.
The AJ considered Complainant’s contention that her position description included duties to
which she could have been assigned as an accommodation such as price checking, cleaning,
collapsing boxes, ordering, and coffee making. The AJ found that the Agency was not
required to reallocate the essential functions and to assign Complainant to only marginal or
secondary functions of the job. The AJ found this accommodation would be equivalent to
creating a “light duty” position for Complainant which the Agency was under no obligation to
do under the Rehabilitation Act.
The AJ considered whether the Agency had an obligation to reassign Complainant to another
vacant position upon realizing that Complainant could not work at the produce department
position. The AJ found no evidence that any vacant position existed in the produce department
that Complainant could perform within her restrictions with or without an accommodation.
Additionally, the AJ found the evidence showed that the Agency had no vacant positions of any
kind at Complainant’s pay level or below, to which Complainant could have been reassigned at
the time.1
Having found that Complainant was unable to perform the essential functions of her position
with or without an accommodation, the AJ found that the Complainant did not establish a
prima facie case of discrimination based on her disability.

2
On appeal, Complainant states that in her Decision, the AJ failed to address Complainant’s
contention that because the Agency assigned Complainant to tasks beyond her medical
restrictions that exacerbated her conditions, Complainant was denied the opportunity to fully
The Agency subsequently issued a
Final Order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

1 The AJ noted that Complainant suggested she be reassigned to positions in the Cash Office
(or CAO) that were classified as GS-5 or GS-6. Complainant’s position was a WG-4, and
thus, those positions would have represented a promotion which the Agency had no obligation
to provide to Complainant as an accommodation.
2 The AJ also dismissed some claims as untimely raised with an EEO Counselor. Complainant
is not appealing those claims and they will not be considered in this decision.
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recover from her disabilities and thus became unable to fulfill the essential functions of her
position.3

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.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a
prima facie case, complainant must demonstrate that: (1) she is an "individual with a
disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an
adverse employment action; and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir.
2001). The burden of production then shifts to the agency to articulate a legitimate, non-
discriminatory reason for the adverse employment action. In order to satisfy his burden of
proof, complainant must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination.

Id.
As a preliminary matter, we note that the EEO complaints process is not the appropriate forum
in which to seek relief for injuries sustained in the course of federal employment. We decline
to consider Complainant’s claim regarding the exacerbation of her condition as a consequence
of her assigned duties, except insofar as Complainant sought an accommodation within her
medical restrictions upon her return to work following her absence for medical reasons.

We find substantial evidence supports the AJ’s Decision. We note that Complainant’s co-
worker, C1, confirms that culling produce was a duty within the store worker position that was
performed by most store workers and not assigned to any one worker. We find, as did the AJ,

3 Complainant states on appeal that she resigned her position on January 26, 2012.
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no evidence that a vacant position within Complainant’s restrictions, such as working with
tobacco or a cashier’s job that did not involve repetitive motions or the occasional lifting of
large items (including 40 lb bags of pet food), existed at the Agency during the time
Complainant requested an accommodation.
We concur with the AJ that Complainant did not demonstrate that at any time after November
22, 2008, she was able to perform the essential functions of her position with or without an
accommodation. Further, Complainant did not identify any vacant, funded positions to which
she could have been reassigned as an accommodation, whose essential functions she could
perform with or without an accommodation. We find, as did the AJ, that Complainant is not a
qualified individual with a disability and thus did not establish a prima facie case of
discrimination under the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
§ 791 et seq.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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
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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

(S0610)
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

(Z0610)
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

Date
April 4, 2014