05980643
10-26-2000
Larry B. Guillory, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Larry B. Guillory v. Department of the Navy
05980643
October 26, 2000
.
Larry B. Guillory,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Request No. 05980643
Appeal No. 01964316
Agency No. DON-93-6894-007
Hearing No. 340-94-3512X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Larry
B. Guillory v. Department of the Navy, EEOC Appeal No. 01964316 (March
12, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On March 29, 1993, complainant filed a formal EEO complaint alleging
discrimination on the bases of race (African-American), age (DOB:
12/16/40), disability (chemical sensitivities), and reprisal (prior
EEO activities), when he was denied reassignment to a position as an
Electronics Technician at the NIDR Detachment in Vallejo, California,
and when he was denied a list of the hazardous chemicals used at the NISE
West Detachment in Vallejo, California. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). Finding there were no material facts in dispute, the AJ issued
a recommended decision finding no discrimination.
In his decision, the AJ found complainant failed to establish a prima
facie case of race or age discrimination because he failed to establish
that a similarly situated individual not in his protected class was
treated more favorably under similar circumstances. In that regard,
the AJ found that the agency did not transfer or reassign any other
Electronics Technician to the Vallejo site during the relevant time
period.
With respect to complainant's claim of disability discrimination, the
AJ found the preponderance of the evidence revealed that complainant
had a record of a an impairment that substantially limited a major life
activity. Specifically, the AJ noted that complainant was diagnosed with
a permanent and stationary injury because of his chemical sensitivities
and that complainant suffered from organic brain syndrome secondary to
chronic chemical exposure. One of complainant's toxicologists found that
when complainant was exposed to chemicals, he would develop a subtle
incapacitation which would worsen over a week of exposure to the point
that complainant would not be able to function mentally or physically.
Complainant's toxicologists collectively believed that if complainant
was further exposed to chemicals in the workplace, he would deteriorate
to the point of total disability.
As a result of complainant's toxicologists' recommendations that
complainant be placed in a chemical free environment, the AJ found
the agency identified thirteen different locations where complainant
could be reassigned so that complainant would work as an Electronics
Technician. However, none of the suggested accommodations were approved
by complainant's physicians. Eventually, complainant was placed on
total disability. Thereafter, complainant was brought back to work
after the agency created an Electronics Specialist position at the same
grade and pay, once the position was approved by complainant's physician.
As such, the AJ found that the agency satisfied its obligation to provide
complainant with an accommodation of his disability, when it created a
new position that would keep complainant in a chemical free environment.
Complainant later requested reassignment to an Electronics Technician
position at the Vallejo facility, arguing that he could now safely
perform the essential functions of the position, according to his new
toxicologist. However, after considering the weight of the evidence,
the AJ found that complainant's new toxicologist's report was internally
inconsistent, and therefore not credible. Although complainant's
new toxicologist agreed with complainant's prior doctors and stated
complainant should not be exposed to solvents or irritant which aggravated
his symptoms, he also noted that agency should try to place complainant
back into an Electronic Technician position. However, the AJ found
that complainant failed to establish that he could be accommodated in
this new position. The AJ found that the weight of the evidence clearly
established that complainant had significant health problems associated
with his exposure to chemicals. However, complainant's physician failed
to address the fear of risk of future injury, which was raised by the
agency.
According to the AJ, the agency denied complainant's request for
reassignment to the Vallejo facility because of his incomplete and
contradictory medical reports. Before rejecting complainant's request,
the agency asked complainant's physician to make a determination as
to whether complainant could work near the chemicals associated with
the position, and provided complainant with a list of chemicals he
would encounter at the Vallejo facility. The AJ found however, that
complainant's toxicologists response was vague, confusing and unresponsive
to the issue of accommodations necessary to return complainant to the
position. As such, the AJ found that the agency denied complainant
the reassignment after considering his well documented medical history,
the lack of information regarding how complainant's condition had been
resolved, and after attempting to accommodate complainant's condition.
Absent further direction from complainant's physician regarding
accommodation, the AJ found that there was a reasonable probability of
substantial harm to complainant should he be reassigned to an Electronics
Technician position.
As for complainant's reprisal claim, the AJ found complainant established
a prima facie case of reprisal, but failed to establish that the
agency's reasons for denying his reassignment to the Vallejo facility
were a pretext for reprisal discrimination. Regarding complainant's
allegation that the agency retaliated against complainant when it denied
him a list of chemicals found at the Vallejo facility, the AJ found
complainant failed to establish that he suffered an adverse action.
Rather, the AJ found that the agency provided complainant with a list
of chemicals in order to formulate an accommodation. Complainant failed
to establish how he suffered an adverse action, or otherwise show how
the list provided to him was inadequate.
On March 21, 1996, the agency issued a final decision adopting the
AJ's RD. The prior decision summarily affirmed the AJ's decision.
In his request for reconsideration, complainant argues that his disability
was not accommodated when he was denied a reassignment to the Vallejo
facility.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. Complainant
essentially argues that which was considered by the AJ and the prior
decision. He failed to articulate how the prior decision involved a
clearly erroneous interpretation of material law or fact. The decision
in EEOC Appeal No. 01964316 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
October 26, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.