01-2005-5462_Brogdon
05-16-2008
Hudnell Brogdon, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Hudnell Brogdon,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200554621
Agency No. DON 00-6070 1-009
Hearing No. 340-2004-00460X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 18, 2005 final order concerning his
equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the
basis of disability (shoulder, cranial, & knee) when on April 10, 2000,
he was terminated from his temporary appointment.2
The record shows that complainant was hired by the Naval Weapons
Station Seal Beach Ordnance Department ("agency") on December 9, 1999.
Complainant was hired on a temporary appointment, not to exceed December
6, 2000, to the position of Inventory Management Specialist, GS-2010-05.
The Supervisory Supply Technician (S1) was complainant's first-level
supervisor. The Materials Management Branch Head (S2) was complainant's
second-level supervisor.
On March 30, 2000, complainant tripped over a portion of a carpet at
the end of his work day. After tripping, complainant walked to his car
to leave work for the day. Before reaching his car, complainant began
to feel pain in his left knee and so he returned to report the tripping
incident to S1.
Complainant was examined on March 30, 2000, by a physician (P1) in the
Department of Emergency Medicine at the Los Alamitos Medical Center.
P1 reported that complainant twisted his left knee, and diagnosed
complainant as having an "acute soft tissue" injury, and proscribed
Vicodin. On April 4, 2000, complainant was examined by a treating
physician (P2) who diagnosed complainant as having a knee sprain,
prescribed Vicodin for pain, and reported that complainant could return
to work his regular duty (i.e., desk work) without any limitations.
On April 5, 2000, S1 and S2 directed complainant to return to work.
On April 5, 2000, complainant called S1 and told her that he was in
intolerable pain and could not work because he needed to take pain
medication. S1 told complainant that he was released by his doctor and
needed to return to work. S1 told complainant that he was out of leave
and would need to talk to S2 about leave as she could not authorize
leave without pay. Complainant then spoke with S2 and S1 together,
and S2 directed complainant to return to work after having his MRI.
On April 5, 2000, complainant attempted to obtain an MRI and was told
that an MRI could not be performed due to his cranial condition.3
On April 6, 2000, S2 directed complainant to report to the dispensary and
to return to work. Complainant told S2 that he would return to work but
would not report to the dispensary and would refuse to be searched by the
military police at the entrance to the facility. Complainant refused
to go to the dispensary because he believed they would want to do a
drug test and would find that he used both Vicodin and Phenobarbital.
Complainant did not report to work or to the dispensary on April 6, 2000
or April 7, 2000. On or about April 10, 2000, complainant was notified
that effective April 10, 2000, he was being terminated for being absent
without leave on April 6 and 7, 2000.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.4
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
May 16, 2008
__________________
Date
1 Due to a new data system, complainant's case has been re-designated
with the above-referenced appeal number.
2 The agency dismissed the issues of whether complainant was discriminated
against on the basis of disability regarding (1) a Workers' Compensation
claim, and (2) the refusal to authorize medical treatment in connection
with the Workers' Compensation claim. On February 3, 2005, the AJ
affirmed the agency's dismissal of these claims holding that the proper
forum for challenging the outcome of complainant's claim for Workers'
Compensation benefits is with the Department of Labor. An EEO complaint
which raises such an issue constitutes a collateral attack on another
proceeding and, therefore, fails to state a claim for relief under Title
VII of the Civil Rights Act of 1964. See, e.g., Pirozzi v. Department
of the Navy, EEOC Request No 05970146 (1998).
3 Complainant testified that he had had a shoulder condition since 1977,
and a "cranial disability from a gunshot wound" since 1985, and took
Phenobarbital for seizures.
4 Assuming, arguendo, that complainant is an individual with a disability,
within the meaning of the Rehabilitation Act, we, nevertheless, find
insufficient medical evidence in the record connecting any alleged
disability with his inability to return to work. It is important to note
that the medical documentation in the record supports the conclusion
that complainant was released by his physician to return to work,
without any accommodation, as of April 4, 2000.
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0120055462
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036