Paul D. Desrosiers, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 1, 2009
0120071113 (E.E.O.C. May. 1, 2009)

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