0120071113
05-01-2009
Paul D. Desrosiers, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Paul D. Desrosiers,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071113
Agency No. 200H-0608-2005104054
DECISION
On December 20, 2006, complainant filed an appeal from the agency's
November 21, 2006 final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Assistant Maintenance Mechanic Foreman, WS-9, in the Facility
Management Service at the agency's Medical Center in Manchester, New
Hampshire. Complaint filed an EEO complaint dated November 10, 2005,
alleging that he was discriminated against on the bases of disability
(knee injury), age (58), and in reprisal for prior protected EEO activity
when: management officials failed to provide reasonable accommodation for
his disability by denying his request for a change in his tour of duty.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination.
The record indicates that complainant sustained a job related injury
to his right knee in March 1998. Thereafter, the agency accommodated
complainant's knee condition by modifying his assignment to: (1)
restrict him from kneeling, crawling, and climbing ladders; (2) limit
stair climbing and walking; and (3) allow complainant to elevate and/or
ice his knee as needed.
On April 13, 2005, complainant was medically evaluated by Doctor 1.
Doctor 1 noted that complainant reached maximum medical improvement
with regard to his right knee and will continue to have difficulty.
Doctor 1 stated complainant should have a "mainly sit-down job with
minimal walking/standing on the right knee" and that he "should not be
bending, crawling, stooping, or climbing ladders."
In a Work capacity Evaluation dated May 5, 2005, Doctor 1 noted
complainant had the following limitations: walking 1-2 hours; standing
1-2 hours; bending/stooping 1 hour; lifting 20 pounds; no squatting,
no kneeling; no climbing; limit standing/walking total to 1-2 hours due
to knee arthritis.
On October 17, 2005, complainant submitted a request for a reasonable
accommodation for the pain he experienced in his right knee. Complainant
requested a change in his tour of duty from 8:00 a.m. - 4:30 p.m. to 8:00
a.m. - 4:00 p.m. with the lunch break included in the new tour of duty.
Complainant submitted an October 11, 2005 letter from Doctor 2 in support
of his accommodation request. Doctor 2 stated that complainant has
degenerative arthritis in his right knee secondary to the effects of
a torn anterior cruciate ligament. Doctor 2 noted that "[s]tanding on
concrete floors leads to irritation and inflammation of this knee joint
and should be minimized. A compressed shift would be very helpful for him
to minimize the amount of time that he has to be on the concrete floors"
The Doctor opined that "reducing his exposure to concrete floors by half
an hour would be helpful for him."
The agency denied complainant's request for a reasonable accommodation
on November 4, 2005. The agency stated that complainant's knee condition
has already been accommodated as evidenced by his modified job assignment
which restricts him from kneeling, crawling, climbing, and limits walking.
The agency noted complainant has also been granted the flexibility to
elevate/ice his knee as needed. The agency stated the modifications
granted allow complainant to perform the essential elements of his
modified job description. The agency determined the letter from Doctor 2
fails to sufficiently explain why a 30-minute reduction in work time would
be more beneficial to complainant than the accommodations already made.
The record reveals complainant moved to a new position in December 2005
or January 2006. Complainant's new position is Operations Supervisor,
WS-10, in the Facility Management Service. Complainant acknowledged that
his new position is mostly sedentary; however, he states that he doesn't
sit in a chair all day and gets up and moves around from time to time.
Complainant states that he still thinks it would be better for his knee
if he did not have to spend as much time on the concrete floor each day.
The agency states the new position requires complainant to work at the
computer most of the time and requires walking less than half an hour
each day.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Upon review, we find complainant failed to show he was denied a reasonable
accommodation. The Commission finds no nexus between complainant's
claimed disability and the requested accommodation of skipping lunch and
leaving .5 hours early each day. Furthermore, we find complainant has
not shown that he was forced to work beyond his medical restrictions.
Moreover, complainant has not shown that he was subjected to disparate
treatment when his tour of duty schedule was not changed. The Commission
finds the agency has articulated legitimate, non-discriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination. Accordingly, the agency's final 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
May 1, 2009
__________________
Date
2
0120071113
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120071113