0120062828
10-05-2007
Isaac Racy, Jr., Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Isaac Racy, Jr.,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01200628281
Hearing No. 370-2006-00477X
Agency No. DFAS-IN-CR-05-030
DECISION
Complainant filed an appeal from the agency's final action dated March 2,
2006, finding no discrimination with regard to his complaint. In his
complaint, filed on December 14, 2004, complainant, a Support Services
Specialist, GS-342-09, at the agency's DFAS, in Oakland, California,
alleged discrimination based on race (African-American), color (black),
sex (male), age (DOB: 06-04-1947), disability (generalized anxiety
disorder), and in reprisal for prior EEO activity when;
(1) In October 2004, management disapproved his request for holiday
leave;
(2) In October 2004, management denied his request for sick leave for
the weeks beginning on October 18 and October 25, 2004; and
(3) On September 9, 2004, he was denied an accommodation of having his
workload reduced, and assigned additional duties.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On February
13, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents.2 With regard to
claim (1), complainant's supervisor, a Field Operations Manager, located
off-site at DFAS San Diego in Southern California, stated that he needed
to ensure that there was continuous administrative coverage at DFAS
Oakland throughout the holidays. Thus, the Manager asked complainant and
his coworker to provide him with a coordinated leave schedule, avoiding
any periods of simultaneous leave. When they failed to provide him with
the requested schedule, the Manager approved the coworker's request for
holiday leave because she already had made travel plans. When complainant
requested simultaneous leave, the supervisor disapproved his request,
and instead allowed him to take annual leave on different dates.
With regard to claim (2), the supervisor previously gave complainant,
and his coworker, prior instructions to call him directly when requesting
leave. Complainant however failed to contact the supervisor during
his extended absence in October 2004. The supervisor, undisputed by
complainant, however, stated that when he was later provided with medical
documentation supporting complainant's absence at issue, he changed the
AWOL to sick leave, and complainant received a paycheck for this period.
On appeal, complainant does not dispute this.
With regard to claim (3), the supervisor stated that complainant failed
to submit the requested medical documentation. The AJ determined that the
record was devoid of any evidence that the requested medical documentation
was unreasonable; rather, the supervisor's request revealed that he was
merely seeking the standard medical information necessary to process
a request for reasonable accommodation. Complainant does not contest
the foregoing arguments on appeal. The supervisor also stated that he
assigned complainant additional mail duties during the relevant time
period at issue because the employee formerly responsible for such duties
had recently left DFAS Oakland, and complainant was the only Corporate
Resources employee at DFAS Oakland with the security clearance necessary
to perform these functions. On appeal, complainant does not dispute
the foregoing explanations.
The Commission agrees with the AJ that complainant failed to rebut the
agency's legitimate, nondiscriminatory reasons for the alleged incidents.
Upon review, the Commission finds that even if complainant was considered
to be a qualified disabled individual, something we do not decide in this
decision, complainant has not shown that the additional duties he was
required to perform and the disapproval of leave as he described above
were somehow in violation of his medical restrictions. Complainant
has not shown that he provided the agency with adequate and sufficient
information to justify less workload and leave as an accommodation. Thus,
the Commission finds that complainant failed to establish his claim that
the agency failed to provide him with a reasonable accommodation.
Accordingly, the agency's final action is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 tends 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 5, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The AJ noted in her decision that complainant subsequently withdrew
the bases of race and color for claims (1) and (2).
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0120062828
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036