Dwayne F.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionMar 11, 20160120143267 (E.E.O.C. Mar. 11, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dwayne F.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120143267 Agency No. 13-42158-0256 DECISION Complainant filed an appeal from the Agency’s final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and 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 decision. BACKGROUND Complainant worked as a Painter at the Naval Shipyard in Portsmouth, Virginia. On November 1, 2013, Complainant filed an EEO complaint in which he alleged that the Supervisory Preservation Manager (M1) and the Supervisory Deputy Shipyard Production Superintendent (M2) discriminated against him on the bases of race (African-American) and disability (two slipped discs in spine) by denying his request for a reasonable accommodation on June 19, 2013, and denying his request for reconsideration on July 9, 2013. Investigative Report Tab (IRT) A. B-5, p. 4. On October 8, 2010, Complainant was placed on permanent medical restrictions per the recommendation of the Shipyard’s Medical Officer. Those restrictions included: (1) sitting for no more than one hour a day; (2) lifting no more than 10 pounds intermittently for up to 8 hours a day; (3) walking or standing for no more than 1 hour a day intermittently; (4) no 1This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120143267 2 kneeling or squatting, climbing stairs or ladders, twisting or bending; (5) no working on ladders or scaffolding. Within these restrictions, Complainant would be able to perform the duties of his Painter position up to 8 hours per day. IRT B-5, pp. 1, 3, 5, 9-10. The Agency initially accommodated him by temporarily assigning him to a security position requiring him to watch for fires, but on October 25, 2012, he submitted a request for reasonable accommodation in which he requested that his job be restructured so as to enable him to continue his painting duties within his medical restrictions. IRT B-5, p. 3. According to the notice of denial of the accommodation request, the Security position was outside of M2’s operational authority and therefore could not be maintained indefinitely. The notice also stated that Complainant’s medical condition prevented him from performing the essential function of his position, which was to paint ships. Next, M1 and M2 initiated a search with the Fleet Human Resources office for vacancies within the Shipyard to which Complainant could be reassigned. When no positions were found, they sent a request to the Office of Civilian Human Resources to locate a position outside of the Shipyard. No positions were identified for which Complainant qualified. IRT B-5, pp. 5-6; IRT C: Statement of M1 ¶ 5; Statement of M2, ¶ ¶ 3, 5. At the conclusion of the investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS Complainant premises his claim of race discrimination upon his assertion that jobs were found within the paint shops for White Painters. To prevail on such a claim, Complainant would have to prove, by a preponderance of the evidence, that M1 and M2 were motivated by unlawful considerations of his race when they denied his request for a reasonable accommodation in June and July of 2013. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Complainant could do so by presenting evidence that the reasons articulated by M1 and M2 for denying his accommodation request were not the real reason for their action, but rather a pretext for race discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. On this crucial issue, however, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by M1 or M2 or which call their veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of a race-oriented motive on the part of M1 and M2 with respect to their denial of his reasonable accommodation requests in the Summer of 2013. 0120143267 3 Agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Because Complainant’s medical restrictions prevented him from painting ships, he was precluded from performing the essential function of his position as a Painter for the Shipyard. Complainant sought to have his job restructured so that he could continue to paint within his restrictions. The Commission has long held, however, that an Agency is not required to accommodate Complainant by eliminating an essential function of his position. Dimiceli v. United States Postal Service, EEOC Appeal No. 01900961(March 30, 1990) citing Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979) (Section 504 [of the Rehabilitation Act] imposes no requirement …to lower or to effect substantial modifications of standards to accommodate a handicapped person) and Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir. 1985). As soon as it became clear, that a job restructuring could not be accomplished without eliminating the ship-painting function from the job, M1 and M2 continued their efforts to accommodate Complainant by initiating searches for positions inside and outside of the Shipyard. They did not abandon their efforts until those avenues had been exhausted. Consequently, we find that the Agency had fulfilled its statutory obligation to attempt to reasonably accommodate Complainant, and that the denial of Complainant’s request by M1 and M2 did not result in a violation of the Rehabilitation Act. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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: 0120143267 4 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may 0120143267 5 request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 11, 2016 Date Copy with citationCopy as parenthetical citation