01A24602
12-01-2003
Richard Savitsky, Complainant, v. Richard A. Meserve, Chairman, Nuclear Regulatory Commission, Agency.
Richard Savitsky v. Nuclear Regulatory Commission
01A24602
December 1, 2003
.
Richard Savitsky,
Complainant,
v.
Richard A. Meserve,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 01A24602
Agency No. NRC-01-13
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Senior Systems Accountant at the agency's Office of Chief Financial
Officer, Rockville, Maryland facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on May 8, 2001, alleging that he
was discriminated against on the bases of disability (labile hypertension,
gastro esophageal reflux) and reprisal for prior EEO activity when:
(1) he was denied a reasonable accommodation of a reassignment;
he was subjected to a hostile work environment in reprisal for requesting
a reasonable accommodation.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its final decision, the agency concluded that complainant was not
an individual with a disability under the Rehabilitation Act because he
failed to establish he was substantially limited in a major life activity.
More specifically, the agency found that the medical documentation in
the record did not support complainant's claims that he experienced
impaired concentration and alertness, sleep disruption and a change in
eating habits, or that he experienced an inability to organize his work
materials and tasks. According to the agency's decision, this together
with complainant's doctor's letters was insufficient to establish that
complainant was substantially limited in any major life activity.
The agency determined that even if it is found that complainant is an
individual with a disability, his supervisors approved complainant's
numerous requests for leave which were effective in addressing his
medical concerns. Because complainant did not establish he was disabled,
the agency concluded it was under no obligation to offer a reassignment.
Even so, complainant was offered a six month assignment to the Department
of Interior.
Addressing complainant's claim that his supervisor's retaliated against
him for requesting a reasonable accommodation, the agency found that
complainant established a prima facie case of reprisal. That is, he
established that he requested a reasonable accommodation in April 2000,
his supervisor, Branch Chief of the General Accounting Branch (S1),
was aware of complainant's request, and the decision to deny him a
reassignment as well as the incidents which allegedly created a hostile
work environment, occurred within a period of time to establish a nexus
with complainant's protected activity.
The agency concluded however, that there were legitimate
non-discriminatory reasons for denying complainant a reassignment and for
each of the incidents in question. According to the letter dated May 1,
2001, rejecting complainant's request for a transfer or reassignment,
the agency stated that complainant had failed to produce adequate medical
documentation of his condition and did not establish that he was an
individual with a disability under the law. Regarding the incidents
which formed complainant's claim of hostile work environment, the agency
concluded that they were not so severe or pervasive enough to create a
hostile work environment. Moreover, the agency found complainant did
not show that they occurred because of complainant's protected activity.
On appeal, complainant contends that the agency never considered
reassignment as a reasonable accommodation and did not consider other
types of positions or positions in the regional office. He disputes the
agency's finding that he was not subjected to a hostile work environment.
Complainant offered no further rebuttal of the agency's conclusion that
he was not an individual with a disability under the Rehabilitation Act.
The agency argues that its final decision was correct and requests that
we affirm its FAD.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally
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). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).
Complainant has claimed he is an individual with a disability and
that he was denied the reasonable accommodation of a reassignment.
A qualified person with a disability is one who, with or without
reasonable accommodation, can perform the essential functions of
the position in question. 29 C.F.R. �1614.203(a)(6). A person with a
disability is a person who (1) has a physical or mental
impairment which substantially limits one or more of such person's
major life activities, (2) has a record of such an impairment, or (3)
is regarded as having such an impairment. 29 C.F.R. � 1614.203(a)(1). In
order for an impairment to substantially limit a major life activity,
the impairment must render the individual unable to perform the major
life activity or significantly restricted as to the condition, manner
or duration under which he or she can perform that activity as compared
to the average person in the general population. See 1630.2(j)(1).
In this case, complainant contends his hypertension and esophageal reflux
substantially limit him in the major life activity of concentrating.
He states that he has severe headaches, due to the fluctuating
blood pressure and that his medications affect his ability to sleep.
He claims to have severe insomnia which affects his alertness at work.
Complainant's physician first wrote to the agency in April 2000 stating
that complainant's blood pressure is consistently elevated at work at
time to �serious levels.� At that time, the doctor recommended medical
leave for four to six weeks and that it �may prove quite helpful� if
complainant were transferred to a new position. In a subsequent letter
issued in September 2000, the physician stated much the same, reiterating
that complainant needed to take medical leave for four to six weeks to
stabilize his medical conditions. He again, suggested a transfer to a
new position in a different work area to �reduce his chance of a stroke
or heart attack.
Based on this evidence, the Commission concludes that complainant
has not shown he is substantially limited in a major life activity.
Although complainant claims to be substantially limited in his ability
to concentrate, he has not provided any detail outlining the extent of
his inability to concentrate i.e. how it affects his ability to work, or
his ability to engage in other activities when compared to the average
person in the population. EEOC Enforcement Guidance on the Americans
with Disabilitiies Act and Psychiatric Disorders No. 915.002 at p. 10
(3/24/97) (Enforcement Guidance); see e.g. Cooper v. Department of
Veterans Affairs EEOC Appeal No. 03940016 (March 4, 1994) (the Commission
found complainant substantially limited in the ability to concentrate).
Moreover, the record contains no medical documentation or testimony
supporting complainant's inability to concentrate. See Ceralde v. United
States Postal Service, EEOC Appeal No. 07A00038 (August 2, 2002) (medical
documentation did not support that complainant substantially limited in
ability to concentrate).
Similarly, complainant fails to adequately support that he is
substantially limited in the ability to sleep. The Commission recognizes
sleeping as a major life activity. See Enforcement Guidance at p 11
(March 25, 1997); see e.g. Palfy v. United States Postal Service EEOC
Appeal No. 07A10087 ( June 17, 2002) (Commission found complainant
substantially limited in sleeping where his multiple medical conditions
affected his ability to regulate his sleep). The record lacks any
specificity regarding the extent to which complainant is limited in
his ability to sleep, i.e. the number of hours he sleeps per night,
the number of days per week he experiences sleeplessness, such that
it can be determined how complainant compares to the average person in
the population. Moreover, there is no medical documentation supporting
that complainant's condition or the side effects of medication alter
his ability to sleep.
In order to establish a hostile work environment claim based on
disability, complainant must prove: (1) she is a qualified individual
with a disability; (2) she was subjected to unwelcome harassment;
(3) the harassment was based on her disability; (4) the harassment
was sufficiently severe or pervasive to alter a term, condition, or
privilege of employment; and (5) some factual basis exists to impute
liability for the harassment to the employer. See Fox v. General Motors,
247 F.3d 169 (4th Cir. 2001).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Although the Commission finds that complainant properly established a
prima facie case of discrimination, we also find that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that XXXX
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 1, 2003
__________________
Date