Hoyt Shelton, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01971399 (E.E.O.C. Mar. 24, 2000)

01971399

03-24-2000

Hoyt Shelton, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Hoyt Shelton v. Department of the Army

01971399

March 24, 2000

Hoyt Shelton, )

Complainant, )

) Appeal No. 01971399

v. ) Agency No. 94-09-0101

) Hearing No. 310-96-5075

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the basis of physical disability (cervical

discinjury and pinched nerves), in violation of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405). For the following reasons, the agency's decision

is AFFIRMED.

ISSUES PRESENTED

The issues on appeal are whether the agency discriminated against

complainant when the following occurred:

(1) on or about September 18, 1991, complainant was injured on the job and

personnel in the Labor Relations Office did not provide him with adequate

aid and services to file for a differential in pay (loss of wages);

(2) on or about September 20, 1992, complainant's temporary promotion

to the position of Engineering Equipment Operator, WG-10, expired and

he was never considered for any temporary promotions since that date;

(3) on dates unknown, complainant was denied overtime while other

employees in his organization received overtime;

(4) on dates unknown, complainant did not receive awards while other

employees in his organization received awards; and

(5) on dates unknown, complainant was forced to drive over 60 miles a

day to and from work (commuting) and on base for his job, while under

the influence of medication, in order to keep working.

BACKGROUND

Complainant was permanently promoted to his WG-3 Laborer position by

the agency in March 1987. Complainant was temporarily promoted to the

position of Engineering Equipment Operator, WG-8, from May 24, 1987,

until September 13, 1987. Then he returned to his WG-3, Laborer position.

Complainant received several temporary promotions from June 1988 through

May 1991. On May 19, 1991, complainant was selected for a competitive

temporary promotion to the position of Engineering Equipment Operator,

WG-10. This temporary promotion was extended on September 27, 1991, until

September 19, 1992, although complainant had suffered an on-the-job injury

on September 18, 1991. Complainant was on leave-without-pay (LWOP) due

to this injury from November 11, 1991, through January 12, 1992, and from

May 4, 1992, through June 2, 1992. On June 4, 1992 complainant returned

to duty, and he was moved back to his Laborer, WG-3, position upon the

expiration of his temporary promotion to WG-10 on September 20, 1992.

Because of his dissatisfaction with being placed back in his WG-3

permanent position, complainant, filed a formal EEO complaint with the

agency on July 12, 1994, alleging that the agency had discriminated

against him as referenced above under "Issues Presented." Following

complainant's successful appeal to this Commission, the agency was ordered

to conduct a sufficient inquiry that would enable it to make a reasoned

decision as to whether to accept four dismissed claims. The agency was

also ordered to accept complainant's fifth claim and to continue its

processing. (EEOC Appeal No. 01945069) The agency subsequently accepted

the four claims it had initially dismissed and processed complainant's

complaint to include the remanded issue. At the conclusion of the

agency's investigation, complainant requested a hearing before an Equal

Employment Opportunity Commission (EEOC) Administrative Judge (AJ).

Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision

(RD) without a hearing, finding no discrimination.

First, the AJ appears to have analyzed the present matter as a reasonable

accommodation case. In doing so, the AJ concluded that complainant

was not a "qualified individual with a disability" as defined by the

Rehabilitation Act because the AJ determined that complainant could

not perform the essential functions of his job as a laborer. Second,

the AJ also analyzed complainant's claim as a disparate treatment case

and concluded that complainant failed to establish a prima facie case

because complainant was treated the same as other employees with respect

to his temporary promotion. The AJ further noted that the responsible

agency official (RO) testified that complainant was not demoted, but

that his temporary promotion expired. The AJ found no evidence of

discrimination or alleged inefficiency by the responsible officials,

with regard to complainant's claim concerning the allegedly inadequate

aid and service he received from labor relations while attempting to

file for differential in pay.

As for complainant's claims regarding a denial of overtime opportunities,

the AJ determined that complainant's physical limitations restricted

him from being able to perform a full range of duties that would warrant

overtime. The AJ also noted that the comparison cited by complainant had

different physical limitations which did not hinder her from performing

overtime duties. Furthermore, the AJ found that complainant was placed in

a light-duty assignment as an accommodation after his on the job injury.

She further concluded that there was no duty to provide overtime in

that accommodation. The agency's FAD adopted the findings of the AJ.

On appeal, complainant asserts the same contentions as stated in his

formal complaint. In addition, complainant appears to contend that

the agency is attempting to constructively discharge him by failing to

enter into a resolution agreement. The agency stands on the record and

requests that the Commission affirm its FAD.

ANALYSIS AND FINDINGS

The Commission follows the guidance of McDonnell Douglas 411 U. S. 792

(1973), when assessing whether an complainant has established a prima

facie case of disability discrimination based on disparate treatment.

See also Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248 (1981).

First, we note that complainant's claims, including the claim that he was

removed from his temporary promotion to his permanent position as a WG-3

Laborer and has not been considered for a promotion since the removal,

are not reasonable accommodation claims but rather disparate treatment

claims. Also, we note that complainant asserts that at the time of

his initial employment with the agency, he had a physical disability

(loss of his hand at the wrist). However, in this matter complainant

contends that his alleged disability resulting from his on-the-job-injury

(cervical disc injury and pinch nerves) was the motivation behind agency

officials discriminatory treatment.

We do not reach the issue of whether or not the AJ correctly held that

complainant is not a "qualified individual with a disability" within

the meaning of the Rehabilitation Act. Based on our review of the

record, we find that even assuming, arguendo, that complainant is a

"qualified individual with a disability," the agency successfully

rebutted any inference of discrimination that complainant may have

established by articulating legitimate, nondiscriminatory reasons for

its actions. Specifically, in response to complainant's Issue #1, the

Chief testified that complainant was not denied the right to file a

claim for a differential in pay (lost wages) to the Office of Worker's

Compensation Program (OWCP). Complainant applied for and was denied the

pay differential. The record supports the agency's representations and

we further find no evidence to support complainant's contentions that

he was treated unfairly or impartially by the officials in the Labor

Management and Employee Services Division. Regarding complainant's Issue

#2, complainant's second level supervisor (Responsible Official (RO)),

testified that complainant's temporary promotion was extended on September

27, 1991, for a year, after his on-the-job injury on September 18, 1991,

because it was anticipated that complainant would return to full duty

status from his injury after two or three months in a light-duty status.

The RO added that complainant's temporary promotion to WG-10 expired

in September 1992, the RO had to "lay-off" 49 people and demote all

temporary appointments. The RO further stated that there were other

engineering equipment operators who were demoted along with complainant.

However, two employees were not demoted, because there was funding to

keep them and a "workload" for them. The RO also stated that he had not

had an opportunity since complainant's temporary promotion expired to

increase the number of Engineering Equipment Operator positions, but if

the opportunity arose and complainant met the physical qualifications,

he would be considered.

When asked why complainant was not given overtime (Issue #3), the RO

testified that because of complainant's physical limitations he was

performing duties answering the telephone, taking care of trip tickets

etc. According to the RO, there was no overtime for someone to answer

the telephone or perform the other tasks that complainant performed

in his light-duty status. The RO also explained that a co-worker on

light-duty was given overtime, because he was able to perform a wider

range of duties than complainant which included lifting of 10- to 20

pounds and putting in spiking mauls. Regarding complainant's Issue #4

(lack of awards), complainant's first level supervisor (RO 2) testified

that Special Act Awards were given to an employee who worked on a landfill

project. Complainant received a cash award for his participation on this

project, but because the amount was not as large as the amount received

by other employees, complainant returned the cash. RO2 explained that

the differences in the amount of cash awards was due to the type of work

that was done.

Finally, in response to complainant's claim that he was being forced

to drive over 60 miles a day to and from work and on the base (Issue

#5), Both RO 1 and RO 2 testified that complainant's physician expanded

complainant's light-duty restriction to include driving a light pick-up

truck. The record contains a copy of a document from complainant's

physician corroborating the agency officials' testimony. There is no

other evidence to support complainant's contentions that he was being

forced to drive or to perform duties beyond his light-duty restrictions.

Also, there is no persuasive evidence in complainant's appeal statement

to support complainant's discrimination claim. Therefore, we discern

no basis to disturb the AJ's findings of no discrimination.

CONCLUSION

Accordingly, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not discussed in this decision, the Commission AFFIRMS the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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 (S1199)

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:

March 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov. 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.

These regulations can be found on EEOC's website.