Lee E. Chatman, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionFeb 26, 2009
0120090472 (E.E.O.C. Feb. 26, 2009)

0120090472

02-26-2009

Lee E. Chatman, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.


Lee E. Chatman,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Army & Air Force Exchange Service),

Agency.

Appeal No. 0120090472

Agency No. 08.019

DECISION

Complainant appeals to the Commission from the agency's decision dated

September 24, 2008, finding no discrimination. In his complaint,

filed on November 28, 2007, complainant, a Warehouse Worker at the

agency, Redstone Arsenal, Alabama, alleged discrimination based on

race (African-American), sex (male), age (over 40), disability, and in

reprisal for prior EEO activity when he was subjected to a hostile work

environment beginning September 25, 2007, and thereafter, which led to

his being forced to retire effective March 21, 2008.

After completion of the investigation of the complaint, complainant did

not request a hearing. The agency then issued its decision concluding

that it asserted legitimate, nondiscriminatory reasons for its action,

which complainant failed to rebut.

After a review of the record, the Commission, assuming arguendo that

complainant had established a prima facie case of discrimination, finds

that the agency has articulated legitimate, nondiscriminatory reasons

for the alleged incidents. The agency stated that the duties for the

Warehouse Worker required receiving and processing merchandise, supplies

and receipts through appropriate systems using a virtual domain terminal

(VDT) or personal computer (PC) or other equipment. The position

also required the completion of various merchandising documents and

reports, either manually or by appropriate systems using VDT/PC or

other equipment. The physical effort for the position also included

working on hard surfaces and areas which required standing, stooping,

bending and work in tiring and uncomfortable positions. The position

also entailed lifting and carrying items that weigh up to 40 pounds.

Complainant's supervisor stated that prior to January 2007, they

had another warehouse worker who could input the information into

the computer, but that individual's position was eliminated and that

individual was reassigned to the Main Exchange. The supervisor indicated

that thereafter she and other managers used their personal time to input

merchandise invoices into the computer because complainant refused to

use the computer despite attempts to train him. On September 25, 2007,

the supervisor gave complainant the communication at issue about invoices

not being processed into the computer.

Complainant indicated that he was harassed by management when he was

asked for medical documentation when they were already aware about

his medical conditions. Specifically, complainant claimed that he

needed assistance inputting invoices into the computer system, loading

merchandise into customer's vehicles, and unloading vendor's trucks.

Complainant stated that although he received computer training twice,

it was unsuccessful since he had a learning disorder in operating a

computer and due to his sensitive eyes looking at a computer screen.

Complainant requested that he not be compelled to perform tasks that he

was unable to do.

Assuming (without deciding) complainant was an individual with a

disability, we find that he was not a qualified individual with a

disability since he could not perform the essential functions of

his position with or without reasonable accommodation. 29 C.F.R. �

1630.2(m). Furthermore, complainant has not shown, and the record does

not indicate, that there was any vacant funded position that met his

medical restrictions. The agency indicated that complainant's retirement

was due to his inability to continue working due to his impairments and

not that he was forced to retire. With regard to complainant's claim

of harassment, we find that he failed to establish the severity of the

conduct in question or that it was related to any protected basis of

discrimination.

Accordingly, the agency's decision finding no discrimination is AFFIRMED.

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

2/26/09

__________________

Date

2

0120090472

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013