01971977
03-20-2000
Katherine Waldburger, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Katherine Waldburger v. Department of the Navy
01971977
March 20, 2000
Katherine Waldburger, )
Complainant, )
) Appeal No. 01971977
v. ) Agency No. 93-00221-046
) Hearing No. 370-95-X2834
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Complainant timely appeals from a final agency decision ("FAD")
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.; and Section 501 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). In her complaint, complainant alleged that she was
discriminated against based on her sex, physical disability (migraines)
and reprisal for prior EEO activity when the agency allegedly failed
to accommodate her disability by: (a) placing her on the day shift; and
(b) delaying her transfer to Work Center 29 for possible swing shift work.
Complainant was employed as a Machinist, WG-10, in Shop 31, Mare Island
Naval Shipyard, until her retirement on disability in March 1995.
Complainant was diagnosed as having migraines which could be better
controlled if she worked on the swing shift. Complainant was employed
on the swing shift in November 1992, when she incurred a back injury.
She was on medical leave because of the back injury until August 1993.
When complainant returned to work in August 1993, the Shop Superintendent
("SS") informed her that the swing shift had been abolished in
anticipation of the impending base closure. Complainant requested a
transfer to Work Center 29, where the agency typically placed employees
when their shop did not have the workload to keep a worker fully employed
or could not accommodate a medical restriction. The SS denied her request
on the basis that he could accommodate her back injury restrictions within
Shop 31. In December 1993, complainant was transferred to Work Center
29, but she was not placed on the swing shift. Complainant contended
that the agency had a policy of not placing light duty employees on the
swing shift.
Complainant timely sought EEO counseling and filed her instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
complainant timely requested a hearing before an EEOC Administrative
Judge ("AJ"). After a hearing, the AJ issued a recommended decision
("RD") finding no discrimination. The agency adopted the RD in its FAD.
Complainant, through her counsel, timely appeals.
The AJ found that found that complainant could not establish a prima
facie case of discrimination based on sex or reprisal when the agency
placed her on the day shift in Work Center 31. Since the swing shift
had been abolished, no one was treated more favorably than complainant.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Similarly, the AJ found
that complainant could not establish a prima facie case of disparate
treatment based on disability, and further found that it would constitute
an undue hardship for the agency to reinstate the abolished swing shift
in Work Center 31 to accommodate her disability. See Moore v. City
of Charlotte, N.C., 754 F.2d 1100 (4th Cir. 1985); Potter V. Goodwill
Industries of Cleveland, Inc., 518 F.2d 864 (6th Cir. 1975).
Insofar as complainant challenged the delay in transferring her to Work
Center 29, and the failure of the agency to place her on the swing shift
in that center, the AJ again found that complainant could not establish
a prima facie case of sex discrimination or reprisal, or of disparate
treatment based on a disability. Regarding complainant's claim that she
was denied reasonable accommodation when her transfer was delayed and
Work Center 29 did not place her on the swing shift, the AJ found that
the Work Center had a policy against placing light duty employees on the
swing shift. The AJ noted that such a blanket prohibition adversely
affected individuals with disabilities and constituted a failure to
make an individualized assessment of the capabilities of each qualified
individual with a disability. <2> Nonetheless, the AJ found that there
was no swing shift position in Work Center 29 which would satisfy the
medical restrictions placed on complainant as a result of her back injury.
The AJ reviewed numerous positions on the swing shift in Work Center 29
and found that: (a) complainant conceded that she was unable to perform
the duties of a paper recycler or taxi driver; (b) the agency had excess
personnel performing paper shredder duties; (c) complainant was not
qualified for sign maker positions; and (d) the positions in bicycle
repair and hazardous material coordinators were filled. Insofar as
complainant contended that she could have performed the duties of the
paper shredders, bicycle repairers and hazardous material coordinators,
the AJ noted that the agency was not required to "bump" the incumbents of
those positions in order to accommodate complainant. Complainant also
argued that she could have performed dispatcher and timekeeping duties
on the swing shift. However, those duties were merely tasks performed
by various employees for no more than two hours a day, and the employees
performing those tasks also performed other duties, such as painting.
The AJ found that the agency was not required to gather together tasks
from various positions so as to create a new position for complainant.
Inasmuch as complainant failed to establish that she was denied reasonable
accommodation when Work Center 29 did not place her on the swing shift,
the AJ found that she could not establish that the delay in transferring
her to Work Center 29 constituted a denial of reasonable accommodation.
On appeal, complainant's counsel summarizes the testimony of the
witnesses at the hearing and argues that the testimony of certain
agency witnesses contradicted their prior affidavits. However, we
note that the AJ found that even assuming these witnesses harbored an
animus against complainant based on her sex, disability or prior EEO
activity, complainant nonetheless failed to establish that any persons
outside her protected groups were treated more favorably than she.
Counsel asserts that "the agency did not include each and every job
performed at [Work Center 29] and limited its responses to discovery
to only a limited list," but counsel does not identify any job which
was supposedly excluded. Counsel also asserts that complainant "listed
numerous other positions that she could have worked and the agency never
challenged them." At the hearing, complainant made reference to various
positions not expressly cited by the AJ (such as tool room attendant)
and to "security, fire, medical, the shipyard watch officer" and "public
works." Hearing Transcript at 97, 105. Complainant did not, however,
establish that any such position was vacant or that she possessed the
necessary qualifications for such positions.
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 AJ 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).
The record as a whole establishes both that the Shipyard was over staffed
as its closure was underway and that complainant consistently identified
tasks which formed parts of various positions, contending that the tasks
should have been separated into a position for her. Complainant's counsel
argues that "the agency could not explain why they could not make the
temporary rotating swing dispatcher jobs [into] non-rotating positions."
However, assuming arguendo that complainant is a qualified individual
with a disability as defined in our Regulations we find that the AJ
properly noted that its obligation of reasonable accommodation did not
require the agency to create a position for complainant or to "bump"
employees from their positions despite the brief's protests that many
of these incumbent employees "for the most part did nothing but sit" or
that complainant could have done the duties of incumbent "supervisors
shredding paper on the swing shift ... for less wages." See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act at 39 (March 1, 1999).<3>
After a thorough review of the record, the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. Accordingly, the Commission discerns no
basis to disturb the AJ's finding that complainant failed to establish
discrimination. Therefore, it is the decision of the Commission to
AFFIRM 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 20, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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.
2 The AJ advised that, if the Superintendent was still employed by the
agency, he should receive training in an employer's obligations under
the Rehabilitation Act.
3 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: WWW.EEOC.GOV.