Nicholas Krewsky, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 22, 2010
0120100540 (E.E.O.C. Apr. 22, 2010)

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