0120082077
02-17-2012
Victor Castillo, Jr., Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Victor Castillo, Jr.,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082077
Hearing No. 451-2007-00228X
Agency No. ARCCAD05DEC12450
DECISION
Complainant timely filed an appeal from the Agency’s February 15,
2008, final order 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented on appeal is whether the decision of the
Administrative Judge, finding that Complainant did not establish the
Agency had discriminated against him on the basis of disability or in
reprisal for prior EEO activity when (1) from January through April
2005 the Agency did not afford Complainant light-duty work while he was
on light duty and (2) in April 2005 the Agency moved Complainant to a
light-duty shop, is supported by substantial evidence of record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sheet Metal Mechanic (Aircraft) Leader, WL-3806-10, in the Tailboom
Section, Structures Repair/Electrical Install/Apache Division, Directorate
of Aircraft Production, Corpus Christi Army Depot in Corpus Christi,
Texas. On April 7, 2006, Complainant filed a formal EEO complaint
alleging that the Agency discriminated against him on the bases of age
and disability and retaliated against him for prior EEO activity when,
among other things, the Agency denied Complainant overtime from January
to April 2005 and moved Complainant to a light-duty shop on the day
shift in April 2005.1
At the conclusion of the investigation, the Agency provided Complainant
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. The AJ held a hearing and issued a bench
decision on January 22, 2008, and issued an order entering judgment in
favor of the Agency on January 30, 2008. The Agency subsequently issued a
final order fully implementing the AJ’s determination that Complainant
failed to prove that the Agency subjected him to discrimination.
Complainant then appealed the Agency’s final order.
As a Sheet Metal Mechanic (Aircraft) Leader, Complainant led the work of
other mechanics, assigned tasks, insured that needed tools and materials
were available, and performed sheet metal work on aircraft. In October
2004, he sustained an on-the-job injury to his right elbow and was placed
on medical restrictions that prohibited him from using vibrating tools,
such as rivet guns, with his right hand. The prohibition against using
a rivet gun became permanent in November 2005. Complainant worked on
his regular night-shift and received overtime assignments from October
2004 until January 2005. ROI Exs. F-3.e, .g, .h; Hearing Ex. C-2.
Complainant testified that, in January 2005, he complained to his first-
and second-level supervisors because he had not been chosen for a TDY
assignment to Hawaii in December 2004. He also testified that he told
them he “was going to go to the EEO” and that he might also have
said that he was going to the union. Hearing Transcript (Hr’g Tr.),
at 18-21, 33-36.
Complainant alleged that he stopped receiving overtime work in January
2005 because he was perceived as having a disability and because he had
threatened to file an EEO complaint. His first-level supervisor (S1)
testified that “work leaders were supposed to work a hundred percent
on the aircraft during overtime” and that he had told Complainant
that allowing him to work overtime would violate his restrictions.
He also testified that, two or three times, he had offered Complainant
overtime to re-label parts and Complainant had declined the offers.
According to S1, Complainant had declined one of the offers because he
had not received sufficient notice. Complainant acknowledged that he
had declined one offer for lack of sufficient notice but asserted that
S1 had not offered him other overtime opportunities. Hr’g Tr. 32-33,
68-69, 89-91.
In April 2005, the Agency moved Complainant to a light-duty shop.
The shop did not have a night shift, and Complainant did not receive a
night differential. S1 testified that the Agency created the light-duty
shop to provide work for employees who had restrictions and could not work
on aircraft. According to S1, the time of employees who did not work on
aircraft was charged to overhead, and carrying overhead could hurt the
Aircraft Shop. He testified that the light-duty shop was carried by the
Director’s Office. Complainant’s second-level supervisor testified
that he gave the Director’s Office a list of individuals who had been
on restrictions for 60 days and that the work of individuals on light
duty was not billed directly to customers. Hr’g Tr. 70, 104.
The AJ concluded that the evidence was insufficient to support
Complainant’s allegations of discrimination. Noting that
“Complainant’s theory seems to be that the Agency regarded him as
having a physical impairment,” the AJ emphasized that his “focus
was on analyzing whether the Agency regarded Complainant as having
an impairment that substantially limited him in certain major life
activities” and “whether the Agency regarded [Complainant] as being
disabled.” Administrative Judge’s January 22, 2008, Decision
(AJ Decision), at 8. The AJ also noted that “the evidence [was]
simply insufficient that the Complainant was substantially limited in
major life activities.” Id. at 9. After reviewing the evidence,
the AJ found that “the Complainant was not disabled for purposes of
the Rehabilitation Act.” Id. The AJ also found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions and
that Complainant had not proven the reasons to be pretextual. In that
respect, the AJ stated that the Agency had not provided overtime work to
Complainant because there was no overtime work within Complainant’s
medical restrictions. Id. at 10. In addition, the AJ concluded that
Complainant’s move to a day shift at the light-duty shop was consistent
with the Agency’s policy of reassigning employees with long-term
restrictions to that shop in order to avoid incurring overhead hours in
the Aircraft Shop. Id. at 14.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his supervisors regarded him as
having a disability, that being regarded as having a disability does not
require Complainant to be disabled in fact, and that the AJ applied an
incorrect legal standard when determining that Complainant did not have
a disability under the Rehabilitation Act. Complainant also contends
that the record does not support the AJ’s determination that the Agency
had not retaliated against Complainant.
In reply, the Agency contends that the AJ’s decision is supported by
substantial evidence of record. The agency argues that the decision makes
clear that the AJ understood that Complainant had based his disability
claim on the “regarded as” part of the definition of disability.
The Agency also argues that the AJ correctly found that the Agency’s
actions were based on legitimate, nondiscriminatory reasons.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. See 29 C.F.R. § 1614.405(a). An AJ’s
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Chap. 9, at § VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
To prevail in a disparate-treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by
demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804, n. 14. The burden then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency’s explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that the AJ’s decision that the Agency did not
discriminate against Complainant is supported by substantial evidence
of record. We assume for the purposes of analysis, without so finding,
that Complainant is an individual with a disability2 within the meaning
of the Rehabilitation Act, and that he has established prima facie cases
of reprisal and disability discrimination.
Substantial evidence of record supports the AJ’s determination that
Complainant has not shown that the agency’s reasons for not providing
him with overtime work and for moving him to the light-duty shop were a
pretext for discrimination or retaliation. Complainant, who acknowledged
that he had declined one offer of overtime work, has not shown that
other overtime work within his restrictions was available and the Agency
failed to offer it to him. Similarly, Complainant has not shown that
the Agency moved him to the light-duty shop for discriminatory reasons.
As the AJ noted, the evidence establishes that Complainant’s move
was consistent with the Agency’s policy of reassigning employees with
long-term restrictions to the light-duty shop in order to avoid incurring
overhead hours in the Aircraft Shop.
We find that the AJ’s conclusions are supported by substantial evidence
of record, and therefore find no basis to disturb that decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, and for the foregoing
reasons, we AFFIRM the Agency’s final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 17, 2012
Date
1 Complainant also alleged that the Agency had discriminated and
retaliated against him when it did not send him to TDY and when
it attempted to move him from shift 2 to shift 1 in January 2005.
The Agency dismissed the complaint on the grounds that Complainant had not
contacted an EEO Counselor in a timely manner. On appeal, the Commission
affirmed the dismissal of those two claims and remanded the current
two claims for further processing. Castillo v. Dep’t of the Army,
EEOC Appeal No. 0120065203 (Apr. 20, 2007). Because his allegation of
age discrimination related to one of the dismissed claims, Complainant
removed the basis of age from his complaint. Report of Investigation
(ROI), at 4; id. at Exhibit (Ex.) F-5.
2 An “individual with a disability” meets at least one of
the following criteria: has a physical or mental impairment that
substantially limits one or more of the individual’s major life
activities; has a record of such an impairment; or is regarded as having
such an impairment. See 29 C.F.R. § 1630.2 (g)(1).
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0120082077
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013