01981295
02-22-2001
Arnold Bearup, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Arnold Bearup v. Department of Veterans Affairs
01981295
February 22, 2001
.
Arnold Bearup,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01981295
Agency No. 96-2157
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.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.<2> Complainant alleged that he
was discriminated against based on disability (lower back injury)
and in reprisal for prior protected activity (requests for disability
accommodation and formal EEO complaint filed under the Rehabilitation Act)
when: (1) he was assigned duties contrary to his medical restrictions,
and as a result he re-injured himself on March 25, 1996; and (2) he was
subjected to hostile work environment harassment based on his disability.
The record reveals that during the relevant time, complainant was
employed as a part-time Food Service Worker, WG-2, at the agency's
Medical Center facility in Martinsburg, West Virginia. In July,
1995, complainant sustained an on-the-job injury involving his lower
back, shoulder, and elbow. After a six-month absence, he returned to
work on February 1, 1996, subject to certain physical restrictions.
Complainant previously filed seven formal complaints on May 28, 1996,
alleging that he was subjected to hostile work environment harassment and
was denied disability accommodation when he initially returned to work,
but he did not prevail on these claims. See Bearup v. Department of
Veterans Affairs, EEOC Appeal No. 01975316 (June 20, 2000).
After temporarily performing light duty in the personnel office,
complainant was given a light duty assignment in the Domiciliary Kitchen
for the Nutrition Environmental Service (Building 502) on March 15, 1996.
At the time, complainant's medical restrictions included: (1) lifting
a maximum of two pounds continuously and four pounds intermittently,
up to two hours per day; (2) standing and walking continuously one hour
and intermittently four hours, up to four hours per day; (3) no climbing,
kneeling, bending, stooping, twisting (including specifically no mopping
or sweeping); (4) pushing and pulling intermittently, up to two hours per
day; and (5) reaching above the shoulder intermittently, up to one hour
per day. In the Domiciliary Kitchen, complainant was assigned duties such
as passing out the condiment kits, cleaning up the patient diet cards,
and cleaning the salad bar. Complainant contends that he was subjected
to harassment by supervisors, and that his tasks exceeded his medical
restrictions because cleaning the salad bar necessitated bending and
stooping, and carrying cardboard boxes to the garbage violated his lifting
restriction, causing him to be re-injured on March 25, 1996. The agency's
witnesses attest that the light duty tasks complainant was assigned
could all be performed consistent with his medical restrictions, that
complainant had been repeatedly told by supervisors not to perform any
duties he could not safely perform, and that as soon as he specifically
notified his supervisor that he could not clean the salad bar without
bending and stooping, this task was eliminated from his assigned duties.
Believing he was a victim of discrimination, complainant sought EEO
counseling an filed three additional formal complaints on August 8,
1996, which were consolidated for investigation. 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. After complainant failed to respond
within the time period specified in 29 C.F.R. � 1614, the agency issued
a final decision. In its FAD, the agency concluded that complainant
was a qualified individual with a disability within the meaning of the
Rehabilitation Act, but was neither subjected to hostile work environment
harassment nor denied reasonable accommodation of his disability.
On appeal, complainant asserts that he should have been permitted to
assume a position in the "Meet and Greet" program rather than resume
kitchen duties when he returned to work on February 1, 1995. He further
asserts that when being directed to perform his assigned duties, he was
regularly threatened by his superior, in front of the Chief of Personnel,
with comments such as "do this work, or you will be considered AWOL,
and handled as such." The agency requests that we affirm its FAD.
Based on a careful review of the record, we affirm the FAD's finding that
complainant has failed to prove, by a preponderance of the evidence, that
he was subjected to retaliation or denial of reasonable accommodation.
In reaching this conclusion, we do not address the agency's threshold
conclusion that complainant is a qualified individual with a disability
under the Rehabilitation Act. Rather, we find that even assuming arguendo
complainant is a qualified individual with a disability, the evidence
does not establish that, more likely than not, he was discriminated
against as alleged. Specifically, with respect to denial of reasonable
accommodation, various management officials attest that as soon as
complainant notified his superior that due to his height, which is over
six feet tall, he had to partially bend or stoop to clean the salad bar in
violation of his restrictions, he was relieved of that task, but it was
already after his alleged re-injury. See Record of Investigation (ROI)
(Affidavit of Food Service Supervisor at 7-8; Affidavit of Worker's
Compensation Field Nurse at 16-19). While complainant contends that
he advised management before he began the assignment that he felt it
would be outside his medical restrictions, agency witnesses contend
that complainant's comments at that time addressed the hours of his
shift, which the agency contends it then cleared with his physician,
and complainant's desire to perform light duty in Personnel or in the
"Meet and Greet" program rather than in the Domiciliary Kitchen because he
felt the kitchen work was degrading. See, e.g., Affidavit of Worker's
Compensation Field Nurse at 18. Complainant concedes he did not raise
the matter again until after his alleged re-injury, whereupon his salad
bar duties were changed.
Moreover, while complainant asserts on appeal that rather than modify
his kitchen duties, he should have been given a preferable light duty
assignment in Personnel or the "Meet and Greet" program, "[a]n employer
need not provide an employee's preferred accommodation as long as
the employer provides an effective accommodation." EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (March 1, 1999) at question 20.
Further, the applying the standards set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission agrees with the agency that complainant has not
established by a preponderance of the evidence that he was denied such
a position for retaliatory reasons, or that management's interactions
with him about his accommodations created a hostile work environment.
In particular, we note that while complainant contends the Food Service
Supervisor threatened him with being deemed AWOL if he failed to assume
his assigned kitchen duties, the Food Service Supervisor contends that she
was responding to complainant's statement that he was not going to come
to work because he desired a different light duty assignment. In these
particular circumstances, we cannot find that the referenced comment
more likely than not establishes retaliatory or discriminatory intent.
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 (M0900)
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
February 22, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.