0120080747
07-24-2009
Jerome A. Alford, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Jerome A. Alford,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080747
Hearing No. 551-2006-00171X
Agency No. 05-68742-00434
DECISION
On November 30, 2007, complainant filed an appeal from an AJ'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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the agency discriminated against complainant on the basis of race
(white), physical disability (neck and shoulder injury), and in reprisal
for prior EEO activity when it informed complainant that he would no
longer work overtime as a driver because he could not wear a seatbelt
shoulder harness.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a motor vehicle operator, WG-5703-07, at Naval Base Kitsap in Bremerton,
Washington. Complainant drove two types of vehicles: 1) access buses
that carry up to 15 passengers and only require a state issued driver's
license to operate; and 2) standard 36-passenger and 60-passenger buses
that require a commercial driver's license to operate. The record
reveals that prior to December 16, 2004, complainant frequently earned
overtime by driving buses for the agency on agency property. Although
agency buses had shoulder safety belts for drivers, complainant did
not use the belts because of a shoulder and neck injury. In December
2004, the Commander of the Naval Base issued a directive that stated
that all motor vehicle operators must wear seat belts and harnesses,
and management informed complainant that he would be promoted to the
position of automotive equipment repair inspector, WG-5823-11, because he
would no longer be permitted to drive buses without wearing a seatbelt.
As an automotive equipment repair inspector, complainant conducted
quality assurance inspections of automotive equipment. On December 7,
2005, complainant submitted a medical statement from his physician in
which the physician stated that complainant suffered from left upper
extremity neuropathy that is aggravated by wearing a shoulder harness,
and complainant should be excused from wearing the harness for "medical
reasons."
On February 21, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (white), disability
(neck and shoulder injury), and in reprisal for prior protected EEO
activity under Title VII when on December 16, 2004, the agency informed
him that he would no longer work overtime as a driver because he could
not wear a seatbelt shoulder harness.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On February 22, 2007, the agency submitted a motion
for a decision without a hearing to the AJ, to which complainant objected.
On February 21, 2005, the AJ issued a decision without a hearing in which
she found that complainant failed to establish that he was subjected
to unlawful discrimination. The AJ's decision became the final action
of the agency forty days after the issuance of the AJ's decision.
29 C.F.R. � 1614.109 (i).1
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly found no
discrimination. Complainant contends that the seat belt law cited by
the agency as a reason for denying him overtime did not apply to him
because he drove buses with a capacity of less than fifteen passengers.
Complainant further contends that he is an individual with a disability
because he is substantially limited in the major life activity of working
and is restricted from lifting more than 25 to 35 pounds. The agency
requests that we affirm the AJ's decision.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a
case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
We find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact exists.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of analysis, we assume arguendo that complainant is an
individual with a disability and established a prima facie case of
reprisal and race and disability discrimination. We find that the
agency provided legitimate, non-discriminatory reasons for its actions.
Specifically, agency management stated that complainant could not earn
overtime as a driver because he could not wear a seatbelt while driving
government vehicles. We note that President Clinton's April 16, 1997
Executive Order 13043 states that "each federal employee occupying any
seating position of a motor vehicle on official business, whose seat is
equipped with a seat belt, shall have the seat belt properly fastened
at all times when the vehicle is in motion." We further note that
Department of Defense Instruction Number 6055.4 (July 20, 1999) states
that all agency employees must wear safety belts while on duty status
or in an agency vehicle. Additionally, 49 C.F.R. � 392.16 states that
"a commercial motor vehicle which has a seat belt assembly installed at
the driver's seat shall not be driven unless the driver has properly
restrained himself/herself with the seat belt assembly." Complainant
contends that the state of Washington permits him to drive without wearing
a safety belt because of his medical condition; however, this matter
is controlled by federal law, which does not allow employees to drive
government vehicles without wearing a safety belt. Complainant contends
that he does not have to wear a seatbelt when operating buses that have
a capacity of less than 15 passengers, but the aforementioned federal
regulations and policies do not mention such an exemption.
Management further stated that automotive equipment repairer inspectors
generally do not drive agency vehicles because using employees at the
WG-11 level is not cost effective for the agency. Complainant contends
that that the agency allowed other automotive equipment repair inspectors
to earn overtime by driving buses. However, there is no evidence
that these employees did not wear seatbelts while operating government
vehicles. Consequently, we find that complainant failed to provide any
evidence from which it could be reasonably concluded that the agency's
explanations were pretext for unlawful discrimination or reprisal.
To the extent that complainant contends that the agency denied him a
reasonable accommodation for his claimed disability because it did not
allow him to drive an agency vehicle without wearing a seatbelt, we note
that complainant must establish that he is a "qualified individual with
a disability," which is defined as an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. � 1630.2(m).
In this case, we determine that federal regulations and policies reflect
that wearing a seat belt is an essential function for operating agency
vehicles. Therefore, complainant's inability to wear a seat belt while
driving agency vehicles made him unqualified to drive agency vehicles.
Therefore, we find that no reasonable fact-finder could conclude that
the agency failed to reasonably accommodate complainant.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 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 (S0408)
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 (Z1008)
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
_____07/24/09_____________
Date
1 There is no indication in the record that the agency issued a final
order after the issuance of the AJ's July 31, 2007 decision, and the
agency's appeal statement argues that the AJ's decision should be affirmed
by the Commission.
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0120080747
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080747