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.