Archie Stroud, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.

Equal Employment Opportunity CommissionMay 20, 1999
01976424 (E.E.O.C. May. 20, 1999)

01976424

05-20-1999

Archie Stroud, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.


Archie Stroud v. Department of Veterans Affairs

01976424

May 20, 1999

Archie Stroud, )

Appellant, )

) Appeal No. 01976424

v. ) Agency No. 96-1770

) Hearing No. 340-97-3054X

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs,)

Agency. )

_______________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 701 et seq. The Final Agency Decision (FAD) was issued on

July 22, 1997. The appeal was filed on August 20, 1997. Accordingly,

the appeal is timely, (see 29 C.F.R. �� 1614.402(a)and 1614.604(b)),

and is accepted in accordance with EEOC Order No. 960.001.

Appellant filed a formal EEO complaint alleging discrimination on the

bases of physical disability (temporary back injury); race (Black);

and religion (Jehovah's Witness), when his supervisor (RMO): (1) denied

him early leave and leaves of absence; (2) denied his requests for safety

shoes; (3) prohibited him from displaying religious materials on the work

area; (4) prohibited him from discussing and reading about his religion

at the work area during duty hours; and (5) constantly monitored his

whereabouts.

Following the agency's investigation, an administrative judge (AJ) issued

a recommended decision, without a hearing, pursuant to 29 C.F.R. �

1614.109(e)(1). The AJ recommended a finding of no discrimination.

The agency subsequently adopted the AJ's findings and recommendation.

It is from this decision that appellant now appeals.

The following is undisputed unless otherwise indicated. Appellant

(African American, Jehovah's Witness) was employed by the Department

of Veterans Affairs (agency), at the West Los Angeles Medical Center.

Appellant transferred into the Laboratory as a Laboratory Worker in

November, 1993. He was on light duty at the time due to a back injury

sustained in October, 1993 while working in Housekeeping. The RMO

(Caucasian, religion unknown, no disability) supervised appellant

for administrative purposes and was in charge of the department.

Appellant was also supervised by a Medical Technologist (S1) who was

responsible for the technical aspects of the department. The RMO had the

final authority on matters within the department. The subordinates who

testified characterized the RMO as a strict and overbearing supervisor.

Moreover, the undisputed record indicates that the RMO treated all of

her subordinates in a similarly strict and overbearing manner.

Religious Material

The agency has a policy which prohibits displaying and reading religious

materials at the workplace during working hours. The record indicates

that appellant read his religious material during working hours.<1>

Several witnesses testified that appellant frequently read religious

materials and discussed his religious beliefs with his co-workers during

working hours. In addition, despite the agency's policy which prohibited

the use of the telephone for personal business other than emergencies,

several witnesses testified that appellant used the agency's telephone,

on a daily basis, for religious purposes.<2>

Safety Shoes

The RMO initially denied appellant's request for safety shoes. However,

after speaking with S1 and being advised of the utility of safety shoes,

the RMO decided to approve appellant's request.

Schedule Change

The RMO initially denied appellant's request for a schedule change

to begin work at 6:00 a.m. However, after discussing appellant's

request with S1, it was determined that such a change would not affect

the agency's operations and accordingly, the RMO approved appellant's

schedule change.

Leave Requests

On January 3, 1996, the RMO granted appellant time off to attend a 10:00

a.m. doctor's appointment, but required that he return to work after

the appointment. Appellant did not return to work on that day and was

issued an Absence without Leave (AWOL) for that period. On January 10,

1996, appellant submitted a request for medical leave from February 15,

1996 to March 15, 1996, but was told that the medical certification he

submitted (i.e. chiropractor's note) was inadequate and unacceptable.

Nevertheless, appellant did not submit any other medical certification and

thus, the RMO denied his request. Despite being denied leave, appellant

did not report to work from February 15, 1996 through March 15, 1996.

Accordingly, an AWOL was issued for those days. Several witnesses

testified that appellant generally failed to comply with procedures for

leave requests and usually gave no advanced notice.

Light Duty Accommodation

On November 12, 1993, within a few weeks of his transfer to the

Laboratory, appellant requested to be taken off light duty. Also on

November 13, 1993, the agency's physician assistant (PA) advised the

agency that appellant was able to perform his regular duty assignments.

Appellant was also placed on light duty from February 13, 1995 to March

14, 1995.

ANALYSIS AND FINDINGS

The AJ construed the record in the light most favorable to appellant

and determined that he failed to establish a prima facie case of

discrimination based on disability, religion, or race because appellant

failed to identify similarly situated employees outside appellant's

protected classes who were treated more favorably. The AJ also found

that the agency articulated a legitimate, non-discriminatory basis for

its employment action on each issue and the appellant failed to proffer

any evidence which indicated pretext or that the agency was motivated

religious, racial or disability discrimination.

With respect to the safety shoes, the record indicates that the RMO

denied appellant's request for safety shoes because she misunderstood the

significance of safety shoes in the decontamination site. Moreover, after

speaking with S1, the RMO approved appellant's request. While appellant

asserts that the RMO intended to harass appellant, there is no evidence

proffered by appellant which indicates that the RMO was motivated by

racial, religious or disability discrimination. It should be noted that

the uncontested record indicates that the RMO treated all employees in

a similar fashion.

With respect to the allegation that the RMO subjected appellant to

constant monitoring, the record reveals that the RMO treated all her

subordinates in this manner. Moreover, appellant did not present any

specific probative evidence which contradicted this finding.

The AJ also noted that while the RMO initially denied appellant's request

to change his scheduled start-time to 6:00 a.m., after speaking with

S1 to ensure that the requested change did not affect the operation

of the office, the RMO approved appellant's request. Moreover, while

appellant asserted that the RMO changed her work schedule so that it

would coincide with his work schedule for the purpose of harassing him,

the record reveals that prior to appellant's schedule change the RMO

had always arrived to work at 6:00 a.m.

With respect to the RMO's denial of appellant's various requests for

leaves of absence, the AJ noted that the RMO justified the denials

by explaining that appellant had continually failed to comply with

the procedures when requesting a leave of absence or early leave and

accordingly, he was not granted such leave. It should be noted that

appellant does not dispute failing to follow the agency's leave of absence

and early leave procedure, nor does appellant present any evidence of

similarly situated individuals who received better treatment.

With respect to the issue regarding the religious materials and

discussions, the AJ determined that the RMO's demands that appellant

remove and discontinue any discussion of religious materials did not

constitute harassment, but a concern for following the agency's policy.

In addition, the AJ found that appellant proffered no evidence of

pretext or that the RMO was motivated by racial, religious or disability

discrimination. The AJ noted that appellant was advised by the RMO,

the Labor Director and the Union President, on October 25, 1995,

that religious materials were prohibited in the workplace and that the

telephone should not be used for personal business, except in the case of

an emergency. Nevertheless, appellant continued to display his religious

material in his work area and use the telephone for religious reasons.

With respect to appellant's allegation of disability discrimination,

without reaching the issue of whether appellant was a qualified

individual with a disability<3>, the AJ determined that the undisputed

record indicated that appellant was not treated differently because of

a known disability. In addition, the AJ determined that appellant was

also reasonably accommodated.

Appellant asserted that in November, 1993, he was coerced by the RMO

to request removal from light duty. In addition, appellant asserts in

February and March, 1995, while appellant was officially on light duty,

the RMO assigned appellant regular duty work. Except for appellant's

uncorroborated assertions, the record indicates that appellant was

assigned light duty work during the periods in which his physician

recommended light duty. Moreover, none of the witnesses identified by

appellant corroborated his assertions.

The record reveals that while appellant remained on light duty, the RMO

assigned appellant light work such as typing, word processing and filing.

Furthermore, it is undisputed that appellant signed a statement that

the RMO reasonably accommodated his disability. Appellant asserts that

the appearance of his signature on the Autoclave during the period

when he was supposed to be on light duty was evidence that he was

performing actual lifting. However, the record indicates that part of

appellant's light duty work entailed assisting his co-worker by signing

the Autoclave. Nevertheless, in order to view the record in the light

most favorable to appellant, the AJ assumed that appellant was in fact

performing some lifting while he was on light duty during the period when

his signature appeared on the Autoclave. However, uncontested medical

records indicate that during this period appellant's physician permitted

him to perform some lifting as part of his light duty work. Accordingly,

the AJ determined that assuming, arguendo, that appellant was required to

perform some lifting, appellant, nevertheless, failed to establish that

the agency did not reasonably accommodate his temporary disability.

With respect to appellant's allegation that the RMO coerced appellant

into removing himself from light duty on November 12, 1993, the undisputed

record indicates that appellant's physician determined that he was able to

perform regular duty work at that time. Accordingly, the AJ determined

that appellant's temporary disability no longer existed on November 12,

1993.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission finds

that the AJ's recommended decision properly analyzed appellant's complaint

as a disparate treatment claim and a reasonable accommodation claim.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); Prewitt v. U.S. Postal

Service, 662 F.2d 292, 305 n.19 (5th Cir. 1981); Enforcement Guidance

on Reasonable Accommodation and Undue Hardship under the Americans with

Disabilities Act No. 915.002 (March 1, 1999). The Commission concludes

that, in all material respects, the AJ accurately set forth the facts

giving rise to the complaint and the law applicable to the case.

Based on the evidence of record, the Commission discerns no basis to

disturb the AJ's finding of no discrimination. Nothing proffered by

appellant on appeal differs significantly from the arguments raised

before, and given full consideration by the AJ. Accordingly, it is the

decision of the Equal Employment Opportunity Commission to AFFIRM the

agency's final decision finding no discrimination.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

5/20/99

_______________ __________________________________

DATE Carlton M. Hadden, Acting Director

1While appellant disputes reading religious material during working

hours, multiple witnesses testified otherwise. Moreover, appellant has

not proffered any evidence, other than his own testimony to support this

contention.

2While appellant disputes using the agency's telephone for any personal

business, appellant has not proffered any evidence, other than his own

testimony to support this contention.

3After a careful review of the undisputed record, the Commission finds

that appellant is not a qualified individual with a disability under the

provisions of the Rehabilitation Act, and accordingly, is not entitled

to its protection. Appellant's back injury was a temporary condition

which lasted no more than a few weeks in November, 1993 and again in

February and March, 1995. Generally, conditions that last a few weeks

and have no permanent or long-term effects on an individual's health

are not substantially limiting. See EEOC Compliance Manual, Volume 2,

EEOC Order 915.002, Definition of the Term "Disability", p. 902-29

(March 14, 1995). In addition, we find no evidence in the record to

support a finding that appellant had a record of a substantially limiting

impairment or was regarded as having a substantially limiting impairment.

Id. at pp. 40-56.