01972825
03-03-1999
Russell A. Todd, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Russell A. Todd, )
Appellant, )
) Appeal No. 01972825
v. ) Agency No. DAY95AR822E
) Hearing No. 280-96-4087X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical disability (chronic
back pain), in violation of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. Appellant alleges he was discriminated against
when he was assigned to perform duties at the cemetery despite being
hired as a summer temporary Tractor Operator, and when he was allegedly
�resigned� from employment without his written consent. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a summer temporary Tractor Operator
at the agency's Public Works Directorate, Fort Riley, Kansas, filed a
formal EEO complaint with the agency on July 13, 1995, alleging that
the agency had discriminated against him as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie
case of discrimination because he failed to demonstrate that either his
supervisor, or the cemetery caretaker who assigned him work, were aware of
appellant's alleged disabilities at the time they assigned work to him.
The AJ also found that appellant failed to demonstrate any nexus between
appellant's alleged disability and their decision to assign him work in
the cemetery, as opposed to Tractor Operator work which appellant argued
he should have been performing since that is what he was hired to do.
In this respect, both the supervisor and the cemetery caretaker indicated
that appellant never gave any indication that he was disabled in the
few days that he worked in the cemetery.<1> The AJ also noted that
even though appellant had provided information to the agency concerning
a service-connected disability rating of 30%, appellant had indicated
that he was not disabled on the applicable self-identification form.
The AJ then concluded that appellant failed to establish a prima facie
case of disability discrimination concerning the circumstances surrounding
his departure from the agency. In reaching this conclusion, the AJ
noted that contrary to appellant's allegation that the agency resigned
him from employment because of his disability, the AJ found that it was
appellant who contacted his supervisor and resigned. The AJ noted that
the caretaker testified that he was with the supervisor when appellant
contacted the supervisor, and that after hanging up with appellant,
the supervisor told him that appellant had just quit. The agency's FAD
adopted the AJ's RD. On appeal, appellant restates arguments previously
made at the hearing, and argues, among other things, that the agency
should have known, because of his service-connected disability paperwork,
that he was an individual with a disability. The agency requests that
we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
presented no evidence of any nexus between the agency's actions and
appellant's alleged disability, because he failed to demonstrate
that his supervisor or the cemetery caretaker had knowledge of any
physical impairment rising to the level of a disability as defined by
the Rehabilitation Act. See Cabrera v. United States Postal Service,
EEOC Appeal No. 01933109 (May 23, 1994); Matheny v. Department of the
Treasury, EEOC Petition No. 03840172 (October 31, 1985). We also note
that merely because an individual has a service-related �disability�
does not automatically mean that the individual is disabled for purposes
of the Rehabilitation Act. See Bailey v. United States Postal Service,
EEOC Appeal No. 01952545 (March 7, 1996). We thus discern no basis
to disturb the AJ's findings of no discrimination which were based on a
detailed assessment of the record. Therefore, after a careful review of
the record, including appellant's contentions on appeal, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that the supervisor's statement was provided via
affidavit to the investigator, and that the supervisor was now deceased
and did not testify at the hearing.