0120113767
08-27-2013
John J. Rak, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John J. Rak,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113767
Agency No. 200J-0357-20102545
DECISION
Complainant filed an appeal from the Agency's July 19, 2011, final decision concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nursing Assistant, GS-5 at the Agency's Jesse Brown VA Medical Center facility in Chicago, Illinois.
On July 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), religion (Catholic), disability, age (63), and reprisal for this complaint when, the Agency removed Complainant from his position for failure to follow leave procedures, effective March 15, 2010.
The Agency accepted the disparate treatment claim for investigation: specifically whether, on the basis of race, religion, age, disability and reprisal "Complainant was removed from his position for failure to follow leave procedures."
Evidence gathered during the investigation shows in March 2007, Complainant felt a pain in his abdomen while lifting a patient. He sought medical treatment and indicates that he was diagnosed with a hernia. As a result, he was out on approved sick leave.
As of April 2, 2007, his physician released him to return to work. Complainant returned, but on that same day, claimed he injured his right foot. The Report of Injury indicates that he got a blister on his foot. Complainant asserts that the blister later got infected as a result of his contact with a patient with a post-operative infection.
Complainant left work following the April 2007 injury and never returned. He subsequently requested to be placed on "light duty" status. Complainant requested that the Agency permit him to perform his nurse functions, while sitting all day, with his foot elevated.
The record shows that Complainant's position "involved strenuous physical exertion on a regular and recurring basis." Complainant's position also required that he perform as a member of Treatment team that required the nurses to respond to emergency situations on a recurring basis efficiently and effectively. The work involved the lifting and repositioning of "critically ill" patients with varying degrees of immobility. The Agency did not grant Complainant's request to sit with his foot up during the day. No other nurse assistants were permitted to sit all day.
After Complainant used sick and annual leave through October 25, 2007, the Agency then placed Complainant on Absence without Leave (AWOL). From August 3, 2008 through December 18, 2009, the Agency had Complainant scheduled to work fulltime on his regular shift from Midnight to 8:00 A.M. Complainant did not report for work and was not on any approved leave.
On September 11, 2009, the Agency sent Complainant a Return to Duty Letter. On October 29, 2009, the Agency sent Complainant a Request for Medical Information letter, providing Complainant with another opportunity to provide medical documentation for his absence or return to work. Complainant did not report for duty and did not submit the requested documentation.
On March 1, 2010, the Director sent Complainant the subject Notice of Removal. Complainant's leave record reflected 2,880 hours of AWOL.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency reasoned that it had articulated a legitimate and non-discriminatory reason for its action and that the action was job related and consistent with business necessity. The Agency concluded that Complainant failed to offer any evidence to establish that the Agency's stated reason was a pretext for discrimination.
ANALYSIS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In this case, the record shows that Complainant's medical condition was described as an infected blister. Yet, for purposes of this analysis, we will assume, without finding, that Complainant is an individual with a disability and that he otherwise met the prima facie elements of his race, age, religion, reprisal and disability claims. We need not focus on the prima facie elements, because the Agency has articulated a legitimate, non-discriminatory reason for its action (that Complainant failed to report to work and failed to comply with the Agency's leave procedures).
The record shows that Complainant did not report to work and he did not comply with the Agency's leave protocol. There is no evidence of pretext because the record does not show that the Agency permitted any other nursing assistant to work with his or her feet elevated. Moreover, management requested that Complainant provide medical documentation supporting his absences and/or request for light duty, but he failed to do so.
Further, to the extent that Complainant's request for light duty may be construed as seeking a reasonable accommodation,1 an Agency can demonstrate a good faith effort by proving that the Agency consulted with the individual with a disability and attempted to identify and make a reasonable accommodation. Schauer v. Social Security Administration, EEOC Appeal No. 01970854 (July 13, 2001). The Agency consulted with Complainant, but Complainant did not provide the Agency with the documentation which the Agency required and deemed necessary for it to make a good faith effort to identify and provide a reasonable, effective accommodation.
Moreover, the record shows that the Agency continued to carry Complainant on the rolls for two years. Given the unusual facts of this case, we find that Complainant failed to show that the Agency's removal action was a pretext for unlawful discrimination, as alleged. The preponderance of the evidence supports the Agency's decision.
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 27, 2013
__________________
Date
1 Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities. See 29 C.F.R. �� 1630.2(o) and (p).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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