Gary Ulecki, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01987008 (E.E.O.C. Feb. 16, 2000)

01987008

02-16-2000

Gary Ulecki, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Gary Ulecki v. Department of the Army

01987008

February 16, 2000

Gary Ulecki,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01987008

Agency No. ATL-95-AT-0200-E

Hearing No. 140-95-8163X

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concerning his claims that he was discriminated against on the bases

of race (White), age (born December 22, 1944), sex (male) and physical

disability (low back strain and herniated discs), in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq.; the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges he was

discriminated against when: (1) he was offered the same position he was

working when disabled; (2) he was not offered retraining or vocational

rehabilitation; and (3) he was not accommodated in the recent job offer

as Safety Technician. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the reasons that follow, the FAD is AFFIRMED in

part and REVERSED and REMANDED in part.

Until April 1990, complainant was employed with the agency as a

Safety Inspector, GS-0018-11. As the result of an on-the-job injury,

complainant was no longer working for the agency and was receiving

workers' compensation benefits. Believing that he was the victim of

discrimination as referenced above, complainant sought EEO counseling

and filed a formal EEO complaint. Thereafter, the agency investigated

the complaint and complied with all of our procedural and regulatory

prerequisites. Subsequently, complainant requested a hearing before

an EEOC Administrative Judge (AJ), which was held on March 11, 1997.

At the conclusion of the hearing, the AJ issued a Recommended Decision

(RD) finding no discrimination on all bases with respect to claims 1

and 2. With respect to claim 3, the AJ concluded that complainant failed

to establish a prima facie case of race, age and sex discrimination.

Nevertheless, the AJ made a finding of discrimination based on the

agency's failure to reasonably accommodate complainant's physical

disability. Subsequently, the agency issued a FAD, dated August 24,

1998, that modified the AJ's RD and concluded that complainant had not

been subjected to any discrimination. It is from this agency decision

that complainant now appeals. No contentions were submitted on appeal.

ANALYSIS AND FINDINGS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

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

Administrative Judge 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).

With respect to claims 1 and 2, the AJ reasoned that complainant failed

to show that any discriminatory basis was a "relevant consideration

with respect to the claimed discriminatory behavior." That is,

complainant failed to present evidence of discriminatory intent.

Additionally, the AJ concluded that complainant failed to present any

similarly situated comparison employee that was treated more favorably.

Beyond bald assertions, complainant presented no evidence to support

his claims. However, concerning claim 3, the AJ determined that the

agency's offer of a Safety Technician position to complainant was not a

reasonable accommodation. The evidence supports the AJ's conclusion in

several respects. In the first instance, the position description did

not accurately reflect the actual duties of the position. While the

responsible agency officials claimed that the complainant would not

have had to perform any functions beyond his physical capabilities,

the AJ reasoned that the inaccurate position description would, among

other things, "keep the complainant uncertain, anxious and guessing as

to whether he was properly meeting his job duties and responsibilities."

Additionally, the tenuousness of the accommodation was further supported

by evidence that complainant's supervisor (S1) did not believe that

complainant truly suffered from physical restrictions. This was

substantiated by the initiation of a Criminal Investigations Division

(CID) investigation into whether complainant was in fact injured before

the agency made the position offer and witness testimony concerning

S1's attitude toward complainant. The AJ further concluded that the

very location of the duty station of the position in question evidenced

hostility and discriminatory animus toward the complainant. The agency

was fully aware of complainant's physical restrictions. Nevertheless,

the agency sought to place complainant in a basement which, at that time,

had no restroom. Under these circumstances, complainant would have

been required to navigate stairs in the ordinary course of business,

as well as, to use the restroom when the need would assuredly arise.

Finally, the AJ considered that the agency neither argued nor exhibited

that a reasonable accommodation would have imposed an undue hardship.

Accordingly, with respect to claims 1 and 2, the FAD is AFFIRMED.

With respect to claim 3, that part of the agency's decision which is

consistent with the AJ's recommended decision is AFFIRMED. That part

of the FAD that is inconsistent with the AJ's recommended finding of

discrimination is REVERSED and the matter is REMANDED for the agency to

comply with the terms of the ORDER below.

ORDER

The agency is ORDERED to take the following remedial actions:

1. To the extent it has not already done so, the agency shall take

corrective, curative and preventive action to ensure that disability

discrimination does not recur, including but not limited to providing

sensitivity training to the responsible official(s) at the Fort Bragg,

facility in the law against employment discrimination. Within thirty (30)

calendar days of the date the training is completed, the agency shall

submit to the Compliance Officer appropriate documentation evidencing

completion of such training.

2. To the extent it wishes to offer a position of employment to the

complainant, the agency shall offer a position that comports with its

obligations under the Rehabilitation Act to reasonably accommodate

complainant's physical disability.

3. In light of the finding of discrimination herein, and the AJ's

determination that the complainant is entitled to compensatory damages,

the issues of compensatory damages and attorney's fees and costs are

REMANDED to the Hearings Unit of the appropriate EEOC field office.

Thereafter, the administrative judge shall issue a decision on these

issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue

a final action in accordance with 29 C.F.R. �1614.110 within forty (40)

days of receipt of the administrative judge's decision. The agency shall

submit copies of the decision of the Administrative Judge and the final

agency action to the Compliance Officer at the address set forth below.

4. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Fort Bragg, North Carolina, XVIII

Airborne Corps facility copies of the attached notice. Copies of the

notice, after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

INTERIM RELIEF (F1199)

When the agency requests reconsideration and the case involves a

finding of discrimination regarding a removal, separation, or suspension

continuing beyond the date of the request for reconsideration, and when

the decision orders retroactive restoration, the agency shall comply with

the decision to the extent of the temporary or conditional restoration

of the complainant to duty status in the position specified by the

Commission, pending the outcome of the agency request for reconsideration.

See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.502(b)).

The agency shall notify the Commission and the complainant in writing at

the same time it requests reconsideration that the relief it provides

is temporary or conditional and, if applicable, that it will delay

the payment of any amounts owed but will pay interest from the date

of the original appellate decision until payment is made. Failure of

the agency to provide notification will result in the dismissal of the

agency's request. See 29 C.F.R. � 1614.502(b)(3).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action AFTER

ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

February 16, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________

Date Equal Employment Assistant

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated __________________________

which found that a violation of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. � 791, et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The Department of the Army, Fort Bragg, North Carolina, XVIII Airborne

Corps (hereinafter "Fort Bragg Facility"), supports and will comply

with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The Fort Bragg Facility, has been found to have discriminated on the

basis of physical disability when an individual was not reasonably

accommodated in a job offer as a Safety Technician. The Fort Bragg

Facility has been ordered to take corrective action in the form of

training for the responsible official(s), payment of compensatory damages

and attorney's fees, and a requirement that any future job offer make

a reasonable accommodation for the individual's physical disability.

The Fort Bragg Facility will ensure that officials responsible for

personnel decisions and terms and conditions of employment will abide

by the requirements of all Federal equal employment opportunity laws

and will not retaliate against employees who file EEO complaints.

The Fort Bragg Facility will not in any manner restrain, interfere,

coerce, or retaliate against any individual who exercises his or her

right to oppose practices made unlawful by, or who participates in

proceedings pursuant to, Federal equal employment opportunity law.

Date Posted: _____________________ _______________________

Posting Expires: _________________

64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. We further note that 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. Since that time, the ADA regulations set out at 29 C.F.R. Part

1630 apply to complaints of disability discrimination. The regulations, as

amended, may also be found at the Commission's website at WWW.EEOC.GOV.