James D. Andrews, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 7, 2003
01A23990 (E.E.O.C. Oct. 7, 2003)

01A23990

10-07-2003

James D. Andrews, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


James D. Andrews v. Department of Veterans Affairs

01A23990

October 7, 2003

.

James D. Andrews,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A23990

Agency No. 2003-1406

Hearing No. 330-A1-8143X

DECISION

The complainant timely initiated an appeal from the agency's final

order concerning his equal employment opportunity (EEO) 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., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 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 order.

The record reveals that the complainant was a Veterans Service

Representative at the agency's VA Regional Office in Houston, Texas

facility. He filed a formal EEO complaint, alleging that the agency

had subjected him to a hostile environment when he received computer

messages that the complainant construed as threats regarding production

and when the agency denied his request for leave without pay. He also

alleged that he was discriminated against him on the bases of disability

(heart condition), age (D.O.B. June 27, 1952), and reprisal for prior

EEO activity when the agency failed to accommodate him by reassigning

him to a new less stressful position after the complainant was verbally

attacked by a co-worker. The complainant alleged that the agency's

action caused him to be off work for seven months.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Following a hearing, the AJ issued a decision

finding no discrimination, except the AJ found that the agency should have

provided the eight hours of official time for preparing the complaint and

recommended that the four hours of annual leave be restored. The agency

adopted the recommendation for restoration of leave.

The issue before us on appeal is the agency decision on the merits

that adopted the AJ's finding of no discrimination or reprisal. The AJ

found that complainant has a heart condition and that his disability

substantially limits him in his ability to breathe, to have mobility

and to do personal activities.<1> The AJ concluded that the agency

would have had to create a position for the complainant to accommodate

the complainant and the agency does not have to create a job as an

accommodation. The agency's final order implemented the AJ's decision.

On appeal, complainant contends that the AJ erred by basing her

conclusion on the premise that the complainant was seeking a stress-free

position. The complainant asserts that he was seeking a position that

was less stressful, and not a stress-free assignment. The agency requests

that we affirm its final order.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record

and that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. We note

that complainant failed to present evidence that any of the agency's

actions were in retaliation for complainant's prior EEO activity or

were motivated by discriminatory animus toward complainant's age,

disability or prior complaint filing. We discern no basis to disturb

the AJ's decision. 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 agency's final order.

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

October 7, 2003

__________________

Date

1 For purposes of this decision, we assume without finding that the

complainant is an individual with a disability.