01a34612
08-04-2005
Leslie M. Meadows, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Leslie M. Meadows v. Department of Veterans Affairs
01A34612
August 4, 2005
.
Leslie M. Meadows,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A34612
Agency No. 99-3685
Hearing No. 340-A0-3608X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the EEOC Administrative Judge
(AJ) properly determined that summary judgment was appropriate and that
complainant failed to establish a prima facie case of discrimination
under the Rehabilitation Act.
BACKGROUND
The record reveals that complainant was a Grounds Keeper at the
agency's Greater Los Angeles Health Care System facility. In 1998,
management noticed that the grounds were not being properly maintained.
They looked into changing the employees' schedules in hopes of better
results. As a result, management sent out several memoranda informing
complainant and other employees that their tours would change from a
four days/ten hours per day (�4/10") schedule to a five days/eight hours
per day (�5/8") schedule. Due to discussions between management and the
union, it took over a year and a half before the changes took effect in
September 1999. By then, employees were given the choice of either the
5/8 schedule or a schedule that allowed employees to work 80 hours in
nine days (�9/80").
Complainant received the various memoranda regarding the change in
tour of duty. As a result, complainant requested that management
maintain his 4/10 schedule to allow him to rest his chronic left shoulder
tendinitis.<1> He provided a note dated July 1, 1999, from his physician
indicating complainant's need for three rest days a week in order to
limit complainant's pain and use of opiate medications. As a result of
complainant's requests, the Chief of Environmental Management Department
(Chief) scheduled two meetings with complainant. Complainant did not
show up for either meeting. On August 12, 1998, complainant was given
the option of a 9/80 schedule. Complainant declined the option and was
placed on a 5/8 schedule.<2>
Complainant filed a formal EEO complaint on August 25, 1999, alleging
that the agency discriminated against him on the basis of disability
when the agency denied his requests for a reasonable accommodation.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an EEOC (AJ).
The agency moved for summary judgment. The agency argued that
complainant's left shoulder tendinitis is not a disability for purposes of
the Rehabilitation Act. Further, the agency claimed that complainant's
failure to show up for the meetings with the Chief was the reason for
the breakdown of the interactive process. The agency also presented
its list of undisputed material facts. Complainant, through counsel,
responded to the agency's motion. As to whether complainant's condition
rises to the level of a disability, complainant argued that there was no
evidence in the file as to the extent of the injury and its limitations
at work or on other life activities. The response summarily stated that
�[t]his is an issue to be decided at the hearing.� As to the issue of
the meetings with the Chief, complainant questioned whether such meetings
had in fact been arranged. Complainant provided three notes from his
physician dated May 18, 1998, July 1, 1999, and September 22, 1999.
Each of the three notes indicate the need for complainant to continue
in a compressed 4/10 schedule.
The AJ issued a decision without a hearing, finding no discrimination.
The AJ determined that there were no material facts in dispute and
accepted the agency's statement of facts. The AJ then analyzed whether
complainant's impairment was substantially limiting in a major life
activity. The AJ found that complainant's reports reveal that complainant
was able to perform his duties as a gardener and used medication to
control the pain. The AJ concluded that complainant's injury did not
limit his ability to work. In addition, the AJ noted that complainant
did not show that he had any limitations regarding any other major
life activities. Therefore, the AJ found that complainant did not have
a disability and the agency did not have a duty to provide complainant
with a reasonable accommodation for purposes of the Rehabilitation Act.
The agency's final order implemented the AJ's decision. On appeal,
complainant provided a supplemental statement alleging that the EEO
process was not impartial. He stated that documents were missing
regarding the President of the Union's failure to follow contractual
agreements. The agency provided the Commission with a copy of the
administrative file asserting that the appeal raised matters that either
do not require comment or were otherwise fully addressed in its final
decision.
ANALYSIS AND FINDINGS
Complainant's Statements on Appeal
On appeal, complainant asserted that the EEO process was not impartial.
In addition, complainant provided documentation regarding a Memorandum
of Understanding (MOU) between the Chief and the Union President.
Complainant argued that a date of an alleged meeting occurred on a Sunday.
In addition, complainant indicated that he was �still looking for his
retirement check to come in the mail� based on the agency's statement that
complainant had retired due to a buy out. Upon review, the Commission
finds that complainant has not shown that the investigation was biased.
In addition, complainant included several documents referring to his
co-worker without providing any relevance to those documents to the
matter at hand.
Summary Judgment
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. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record
has been adequately developed for summary disposition. We note
that complainant asserted in his response to the agency's motion
for summary judgment that the issue of his injury is a matter for
the hearing. Complainant did not provide any evidence or information
as to who would testify and/or what would be presented at the hearing.
After a careful review of the record, the Commission finds that the AJ
correctly determined that there are no genuine issues of material fact.
Accordingly, we conclude that the AJ properly issued her decision without
a hearing.
Disability Discrimination
To bring a claim of disability discrimination, complainant must first
establish that he is an individual with a disability within the meaning
of the Rehabilitation Act. An individual with a disability is one who
has, has a record of, or is regarded as having a physical or mental
impairment that substantially limits one or more of his/her major life
activities. 29 C.F.R. � 1630.2(g).
Major life activities include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). The term "substantially
limits" means: unable to perform a major life activity that the average
person in the general population can perform; or significantly restricted
as to the condition, manner or duration under which an individual can
perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general
population can perform that same major life activity. 29 C.F.R. �
1630.2(j)(1). Factors considered in determining whether an individual
is substantially limited in a major life activity include: the nature
and severity of the impairment; the duration or expected duration of
the impairment; and the permanent or long-term impact, or the expected
permanent or long-term impact of or resulting from the impairment. 29
C.F.R. � 1630.2(j)(2).
Upon review of the record, the only medical evidence presented by
complainant was the three notes from his physician dated May 18, 1998,
July 1, 1999, and September 18, 1999. The three documents clearly
indicate that complainant can perform the essential functions of his
position despite the on-the-job left shoulder injury he incurred in
December 1995. The only �limitation� indicated in these notes is that
complainant should work a compressed 4/10 schedule. The Commission
finds that complainant has not shown that such a recommendation by the
physician rises to the level of substantially limited in the major life
activity of working. The medical notes provide no further information
regarding any other limitations complainant may have due to his injury.
Further, complainant failed to indicate any additional limitations due to
his condition which substantially limit him in any major life activity.
We note that complainant did not put forth any evidence or argument
that he has a record of or was regarded as having a physical or mental
impairment that substantially limits one or more of his major life
activities. Therefore, we conclude, as the AJ did, that complainant
failed to establish that he is an individual with a disability for
purposes of coverage under the Rehabilitation Act.<3>
CONCLUSION
Therefore, the Commission affirms the agency's final order implementing
the AJ's decision without a hearing finding for the agency.
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 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 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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
August 4, 2005
__________________
Date
1The record indicates that complainant sustained an on-the-job injury
to his left shoulder in December 1995. In 1997, complainant's physician
determined that his condition was permanent.
2In January 2000, complainant retired from the agency taking a buy out.
3Based on the Commission's finding regarding coverage under the
Rehabilitation Act, we need not address complainant's arguments pertaining
to the Union President and contractual agreements..