0120100540
04-22-2010
Nicholas Krewsky, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Nicholas Krewsky,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100540
Agency No. 094008502007
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC AJ) from the agency's decision dated October 22,
2009, dismissing his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. In his complaint dated August
10, 2009, complainant alleged that he was subjected to discrimination
on the basis of disability (deaf) when since April 2004, the agency
denied him reasonable accommodation by failing to provide him with
interpreters.1
On May 13, 2009, complainant contacted an EEO counselor and claiming that
on the same day he learned that his immediate supervisor was unaware
of his duty to provide him with reasonable accommodation, and none was
routinely provided. The EEO counselor asked complainant what event
prompted him to believe he was discriminated against. Through his
representative complainant replied that after the agency failed to
reasonably accommodate another employee, he asked his immediate supervisor
if he was aware of the requirement to provide reasonable accommodation
or received training thereon.
In September 2009, the agency requested complainant to clarify his
complaint by including specific facts and dates. Complainant, by and
through his representative, replied that on May 13, 2009, he learned
that his immediate supervisor was unaware of his duty to provide him
reasonable accommodation, and that it was not routinely provided.
In response to the agency's further requests for clarification,
complainant's representative declined to give more information, except
to write all requested information was given during EEO counseling.
Complainant is an Equipment Specialist, GS-09, with the NAVFAC MIDLANT
PWD SUBASENLON in Groton, Connecticut. The counselor's report indicates
that he stated that he was promoted in November 2002 to the position of
Equipment Specialist, GS-7/9/11, received a career ladder promotion to
GS-9 in 2004, but has yet to be promoted to the GS-11 Engineer Technician
level. According to the counselor's report, complainant's third line
supervisor explained to complainant that his Equipment Specialist position
was at the GS-7/9 level. Complainant's immediate supervisor indicated
that GS-9 was at the full performance level. The record contains a job
opportunity announcement for the position of Equipment Specialist with
an opening date of August 30, 2002, at the GS-5/7/9/11 levels.
The counselor's report indicates complainant contended that he was not
provided an interpreter for safety and equipment operation training.
The record reflects that complainant was given make-up "RADCON" training
on October 30, 2008, without an interpreter. The agency secured the
written script for the training film, which it planned to regularly pause,
to allow reading and discussion. Complainant missed the original training
on October 22, 2008, where an interpreter was provided.
The counselor's report also indicates that complainant stated that due
to his technical knowledge, he was the only one who could work on the
floating crane (YD), but was not given the software program to create
spreadsheets for the YD upgrade. According to the counselor's report,
complainant's immediate supervisor stated complainant voluntarily did
a spreadsheet for the YD upgrade, and it was not part of his position
description.
The counselor's report indicates that complainant stated his cellular
phone did not receive a notice of drill, so he was unable to participate.
According to the counselor's report, the supervisor confirmed with
complainant that he is not having problems with his blackberry.
In apparent response to their May 13, 2009 discussion and complainant's
contact with an EEO counselor, by memo dated July 9, 2009, complainant's
immediate supervisor notified complainant that a sign language interpreter
would be provided as follows: mandatory safety talks, discussions
on significant changes in workplace procedures and policies, command
functions attended by all PWD employees, mandatory training, disciplinary
action and performance review appraisal reviews. He continued that the
agency would provide interpreter services for human resources training
or other times when he needed to get benefits information with prior
arrangement.
In its FAD, the agency defined the complaint as alleging discrimination
[based on disability, deaf] when:
1. on May 13, 2009, he learned his immediate supervisor was unaware of
his duty to provide the reasonable accommodation of an interpreter;
2. he was not promoted after his initial selection in November 2002 to
GS-11;
3. he was not provided an interpreter for safety and equipment operation
training;
4. he did not receive software needed to create a YD upgrade spreadsheet;
and
5. he did not receive notice of a base-wide drill.
The agency dismissed claim 1 for failure to state a claim. It reasoned
that complainant failed to show how his supervisor's lack of knowledge
affected a term, condition, or privilege of his employment. It dismissed
claims 2 through 5 for failure to timely initiate EEO counseling.
It reasoned that complainant did not contact an EEO counselor within
45 calendar days after these incidents occurred. Complainant initiated
EEO counseling on May 15, 2009.
On appeal, complainant submits an email dated April 24, 2008, which
his representative sent to someone in the agency stating that prior
to a reorganization the Groton HRO office provided services to deaf
individuals, but afterwards stopped doing so, resulting in numerous
mandatory trainings being given without interpreters. On the same day,
the representative forwarded a copy of this email to complainant. In his
argument, complainant generally reiterates allegations in his complaint.
He argues that the agency has a legal obligation to provide reasonable
accommodation to individuals with hearing disabilities.
In opposition to the appeal, the agency argues that its FAD should be
affirmed. It notes that it asked complainant to provide specific facts
and dates on his claims, and complainant did not do so. On claim 4,
it argues that complainant performed the task on his own initiative,
it is not a duty of his position, and he got an award for doing it,
so he was not harmed. In reply to the agency, complainant contends
that contrary to the agency's assertions, he gave numerous examples
during EEO counseling of not receiving the reasonable accommodation
of an interpreter. He gives examples, but no specific incident dates
within the 45 calendar day limitation period. On claim 2, complainant
contends that he believes/believed he was hired into his position with
a full performance promotion potential of GS-11, and was only told most
recently this was not the case. He does not state when he was told.
Complainant contends that the promotion potential of GS-11 was only
changed upon his hiring. Complainant also argues that he did not know
he was aggrieved until he contacted an EEO counselor.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Applying the above law, we find claim
1 fails to state a claim. The supervisor's lack of knowledge about the
Rehabilitation Act does not state a claim because this does not involve
an action or inaction against complainant.
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO
counseling shall be extended when an individual shows he did not know
and reasonably should not have known that the discriminatory action or
personnel action occurred. 29 C.F.R. � 1614.105(a)(2). We find that
the agency properly dismissed claims 2 through 5 for failure to timely
initiate EEO counseling. Complainant identifies no specific incidents
that occurred during the 45 calendar day limitation period, despite
repeated opportunities to do so.
Turning to claim 2, complainant does not state that his position had
no promotion potential to GS-11 within the 45 calendar day limitations
period, despite opportunities to do so. Further, given that complainant
received his last career ladder promotion in 2004, to the GS-9 level, we
find he knew or should have known long prior to the date he initiated EEO
contact in May 2009 that the agency did not view the job as having career
ladder promotion potential to GS-11. It is incredible that not getting
a routine career ladder promotion year after year would not trigger
knowledge of this. Further, complainant's assertion that he did not know
he was aggrieved until he contacted an EEO counselor is incredible.
The FAD 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
April 22, 2010
__________________
Date
1 The record contains a final agency order that in April 2004 fully
implemented a finding by an EEOC AJ that complainant was discriminated
against based on disability (hearing impairment) when he was not
reasonably accommodated with a qualified interpreter.
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0120100540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100540