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.