01a21645
03-20-2003
Kenneth Hicks, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Kenneth Hicks v. Department of the Navy
01A21645
3/20/03
.
Kenneth Hicks,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A21645
Agency No. 00-61331-006
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Supply Technician at the agency's Panama City, Florida facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 22, 2000, alleging that he was discriminated
against on the bases of disability (hearing impairment) when:
(1) he was denied a reasonable accommodation when he was not placed
in a vacant Inventory Management Specialist ("IMS"), GS-2010-7/9/11,
position and;
he was denied saved pay.
Complainant also alleged he was discriminated against on the basis of
reprisal (prior EEO activity), when:
he was placed into the Supply Technician, GS-2006-6; step 10 position;
and
his supervisor instructed him to immediately discontinue the use of
golf carts while riding around the station.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant was an individual
with a disability in that he suffered from a 43% hearing loss from
an on the job injury he incurred while working as a Crane Operator.
His hearing impairment affected his ability to use a telephone, hear
conversations, and watch television or movies. Furthermore, the agency
found complainant was a qualified individual with a disability because
he was able to perform the essential functions of his position.
The agency found complainant was removed from his Crane Operator position
and placed into the Supply Technician's position, which complied with
his doctor's request that complainant not work around loud noises,
which could further impair his hearing. Since complainant was provided
a reassignment to the Supply Technician position the agency found
that complainant failed to establish that he was denied a reasonable
accommodation when he was not placed into the IMS position. Furthermore,
the agency found complainant was not placed into the GS-11 IMS position,
because he did not have any inventory management experience, and was
therefore not qualified for the position.
Complainant argued that he was discriminated against when he did
not receive saved pay from his WG-11, step 5 Crane Operator position
when he was placed into the GS-6, step 10 Supply Technician position.
Although the agency apparently had previously provided employees with on
the job injuries saved pay instead of requiring them to seek reimbursement
through the worker's compensation program, it was informed it could
no longer provide saved pay. Instead, the Department of Labor would
reimburse the employee for any difference in pay which was necessary
because of an on the job injury. The agency found complainant failed
to identify any individual who was provided with saved pay after the
new policy took effect.
As for his claim of reprisal, the agency found complainant failed to
establish that management was aware of his August 2000 EEO activity
since he was placed into the Supply Technician's position in April 2000.
Assuming that his supervisor did learn of his EEO activity when he
instructed complainant not to use the golf cart, the agency found that
it articulated a legitimate, nondiscriminatory reason for its action.
Specifically, the agency found it restricted complainant from driving a
golf cart as an effort to limit complainant's exposure to loud noises.
The agency conceded that the email sent to complainant was not the
optimal way to handle the situation, however, it did have complainant's
best interest in mind. The agency found complainant failed to establish
any evidence of a retaliatory motive when it instructed him to not drive
around in golf carts.
Complainant did not raise any contentions on appeal.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship.
29 C.F.R. � 1630.9. As a threshold matter in a case of disability
discrimination under a failure to accommodate theory, the complainant
must demonstrate that he is an "individual with a disability." We find,
as did the agency, that complainant, suffers from a substantial limitation
to the major life activity of hearing, and is therefore an individual
with a disability. The next question presented is whether complainant
is a "qualified" individual with a disability as defined in 29 C.F.R. �
1630.2(m). This section defines qualified individual with a disability
as, with respect to employment, a disabled person who, with or without
reasonable accommodation, can perform the essential functions of the
position in question. The agency does not dispute that complainant is
a qualified individual with a disability.
When the agency determined that complainant could no longer perform the
essential functions of Crane Operator position, it reassigned him to
the Supply Technician position. The gravamen of complainant's claim is
that the agency should have provided him with a position with the same
pay as his former position, or should have guaranteed that he would not
suffer a reduction in pay. Complainant claims that he was informed he
would have saved pay until he retired.
If, because of a disability, an employee can no longer perform the
essential functions of a position, with or without an accommodation,
an employer must provide the employee with a reassignment to a vacant
position, unless it can show undue hardship. EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship under the American's With
Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002) at p. 37.
An employer must reassign an individual to a vacant position equivalent
in terms of pay, status, and other related factors, including benefits,
if the employee is qualified for the position. Id. at 39. If there
are no vacant equivalent positions, then an employer must reassign the
individual to a lower level position. Id.
Here, complainant presented evidence of the Inventory Management
Specialist vacancy, which would have provided complainant with the
same rate of pay as his prior Crane Operator position. However, when
complainant requested that the Selecting Official look at his application
only as a courtesy,<1> he was informed that he did not have the requisite
skill level. Specifically, complainant did not have any experience in
inventory management. Although there was some testimony regarding the
possibility that the agency could have trained complainant to be qualified
for the position, the agency is not required to do so under the Americans
With Disabilities Act. Id. at p. 38. However, the agency did reassign
complainant into the Supply Technician position, albeit at a lower rate
of pay. Finding no evidence in the record of any other vacancies at the
higher rate of pay for which complainant was qualified, we find the agency
did not deny complainant a reasonable accommodation of his disability.
See Hampton v United States Postal Service, EEOC Appeal No. 01986308
(July 31, 2002).
As for complainant's claim that he was denied saved pay, we find that
this matter rests with the Department of Labor's Office of Worker's
Compensation. Indeed, testimonial evidence in the record reveals
complainant's injury was not deemed compensable by the Department
of Labor, and as such, he was not provided with the difference in
pay between his Crane Operator position, and the Supply Technician
position. Although the agency seemed to have instituted a practice in
the past of paying the difference so that employees did not need to seek
reimbursement from the Department of Labor, that practice ended around
the time complainant sought saved pay.<2> Complainant failed to present
sufficient evidence that the agency's reasons for denying him saved pay
was a pretext for disability discrimination.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of retaliation when he was not
reassigned to the IMP position, and when he was instructed not to use
golf carts. Specifically, the evidence reveals that complainant had
not participated in EEO activity at the time of the selection. As such,
he has not established a causal nexus between his EEO activity and the
nonselection required for an inference of retaliation. Furthermore, we
do not find that the agency's restriction of complainant's use of golf
carts rises to the level of an adverse action necessary to establish a
prima facie case of retaliation.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
3/20/03
Date
1Complainant did not apply for the position.
2Complainant's appeal of the Department of Labor's decision was pending
at the time of the investigation.