Wayne Bryant, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 22, 2003
01A23197_r (E.E.O.C. Dec. 22, 2003)

01A23197_r

12-22-2003

Wayne Bryant, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Wayne Bryant v. Department of Veterans Affairs

01A23197

December 22, 2003

.

Wayne Bryant,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A23197

Agency Nos. 98-1507, 98-1514, 98-2140,<1> 98-3004

Hearing Nos. 120-99-6894X, 120-99-6859X

DECISION

Complainant appeals to the Commission from the agency's April 22, 2002

decision finding no discrimination. Complainant alleges discrimination

on the bases of race (Black), color (black), reprisal, and disability

when: (1) the agency controverted his claim for workers' compensation;

(2) he was subjected to harassment when he was counseled (i.e., �Reports

of Contact�), not reassigned, not granted a leave of absence, and not

promoted or trained; and (3) the agency failed to provide him with a

reasonable accommodation resulting in his constructive discharge in

July 1998.

On March 26, 2002, following a hearing, an EEOC Administrative Judge (AJ)

issued a decision finding no discrimination. Specifically, the AJ found

complainant failed to show that he was substantially limited in a major

life activity and was not, therefore, an individual with a disability.

With regard to complainant's workers' compensation claim, the AJ found

that complainant had not shown harm and, therefore, fails to state a

claim. The AJ found that even if complainant had shown harm, complainant

did not establish a prima facie case of discrimination with regard to the

workers' compensation claim. With regard to the non-selection, Reports

of Contacts, leave, and training, the AJ found that complainant failed to

rebut the agency's legitimate nondiscriminatory reason for its actions.

With regard to complainant's claim of hostile work environment, the AJ

found that the matters raised were not sufficiently severe and pervasive

enough to alter the conditions of employment and create a hostile

work environment. With regard to the constructive discharge, the AJ

found that complainant's resignation was voluntary and not a result of

intolerable working conditions. On April 22, 2002, the agency issued a

decision fully implementing the AJ's decision, which is the subject of

the instant appeal.

In complainant's brief on appeal, complainant states that he, "focuses

on his failure to accommodate claims in this appeal." Therefore, the

Commission will only render a decision on complainant's disability claim

for a reasonable accommodation. On appeal, complainant argues that, "he

was discriminated against based on disability when denied the reasonable

accommodation of re-assignment to the mail-room, and when the Agency

failed to take reasonable timely measures to find him an alternative

re-assignment." Complainant alleges he is a individual with a disability,

namely, anxiety and depression. He argues on appeal that, "his mental

condition changed as a result of harassment and retaliation by his two

immediate supervisors beginning in June 1997." Assuming, arguendo, that

complainant is an individual with a disability, we find that complainant's

requested accommodation is not reasonable. An employer does not have to

provide an employee with a new supervisor as a reasonable accommodation.

EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship

Under the Americans with Disabilities Act, EEOC NOTICE Number 915.002,

Question 33, (October 17, 2002). Complainant's request for re-assignment

is ultimately a request for a new supervisor, which is not required.

Therefore, complainant was not denied a reasonable accommodation.

The agency's decision finding no discrimination is AFFIRMED.

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 22, 2003

__________________

Date

1Sometimes this is referred to by the agency

as 98-2410.