Larry B. Guillory, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 26, 2000
05980643 (E.E.O.C. Oct. 26, 2000)

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.