Keith W. Longey, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 30, 2002
01A03539 (E.E.O.C. Sep. 30, 2002)

01A03539

09-30-2002

Keith W. Longey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Keith W. Longey v. Department of Veterans Affairs

01A03539

September 30, 2002

.

Keith W. Longey,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03539

Agency No. 9711280

Hearing No. 160-97-8559x

DECISION

Keith W. Longey (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. The appeal is accepted pursuant to 29 C.F.R. �

1614.405. Complainant alleges he was discriminated against on the basis

of disability (diabetes) when:

(1) on November 6, 1996, he was admonished for failure to provide

vocational services to the veterans at the Veteran's Transitional House;

(2) in November 1996 he was harassed, subjected to discriminatory

working conditions, and denied an employment physical;

(3) beginning in November 1996, he was denied a reasonable

accommodation;

in December 1996 he was denied training pertaining to employment of

the disabled in the federal sector; and

(5) on December 3, 1996, he received a reprimand.<1>

For the following reasons, the Commission AFFIRMS the agency's final

order.

BACKGROUND

The record reveals that complainant, a Vocational Rehabilitation

Specialist at the agency's Brockton/West Roxbury, Massachusetts Medical

Center, filed a formal EEO complaint with the agency on December 19, 1996,

alleging that the agency had discriminated against him as referenced

above. 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.

The AJ concluded that complainant failed to establish that he is an

individual with a disability within the meaning of the Rehabilitation Act.

In so finding, the AJ noted that although complainant had an impairment,

he failed to show that it substantially limited any of his major life

activities. The AJ therefore concluded that complainant failed to

establish a prima facie case of disability-based discrimination.

The agency adopted the AJ's finding of no disability-based discrimination.

On appeal, complainant raises a number of contentions. He argues

that the AJ refused his request to re-open the hearing and ignored

the developed evidence. He also contends that the hearing �lost any

continuity� because it was postponed for a year after the first day of

testimony. In addition, he argues that he is a qualified individual

with a disability and that the agency was required to provide him with

�reasonable accommodation negotiations.�

In response, the agency argues that there is no evidence that the

postponement of the hearing prejudiced complainant's case, noting that

complainant had ample opportunity to present evidence and cross-examine

agency witnesses. The agency further contends that complainant's request

to re-open the hearing involved complainant's desire to present evidence

relating to damages and that the AJ's decision to bifurcate the hearing

was proper. The agency requests that we affirm its final order.

ANALYSIS AND FINDINGS

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).<2>

After a careful review of the record, the Commission finds 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 sufficient evidence to establish that he is an

individual with a disability within the meaning of the Rehabilitation

Act.<3>

As a threshold matter, complainant must establish that he/she is an �

individual with disability� within the meaning of the Rehabilitation Act.

An "individual with a disability" is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities;

(2) has a record of such impairment; or (3) is regarded as having such

an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,

but are not limited to, caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. � 1630.2(i).

Here, it is undisputed that complainant has an impairment, diabetes.

Complainant provided no evidence to establish, however, that his

impairment substantially limits a major life activity. The record

establishes that complainant's impairment limits his ability to drive

long distances and requires him to eat small meals at certain intervals

throughout the day. The evidence also establishes that for a period of

time after complainant was exposed to an individual with tuberculosis,

complainant's physician felt that complainant should not be in contact

with infectious disease patients. It is unclear how long this restriction

was in place, although complainant testified that he was told he should

avoid contact with infectious patients until he completed an antibiotic

regime.

An individual is substantially limited in a major life activity if he or

she is unable to perform that activity or is significantly restricted

as to the condition, manner, or duration under which he or she can

perform that activity, as compared to the average person in the general

population. See Appendix to Part 1630 - Interpretive Guidance on Title I

of the Americans with Disabilities Act, 1630.02(j). Although, as noted

above, complainant's impairment limited him in certain ways, complainant

provided no evidence that he was unable to perform or significantly

restricted in his ability to perform a particular major life activity.<4>

Accordingly, we discern no reason to disturb the AJ's finding that

complainant was not subjected to disability-based discrimination.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

September 30, 2002

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 Complainant alleged in his formal complaint that Issues 4 and 5 were

also motivated by his prior EEO activity. The hearing transcript reveals

that in setting forth the issues to be heard, the AJ did not include

complainant's claim of retaliation, limiting the hearing to the claim of

disability-based discrimination. Complainant did not specifically object

to the AJ's failure to include his retaliation claim in the framing of

the issues to be heard, although he did testify that he was subjected

to retaliation. We note, however, that complainant did not contend on

appeal that the AJ improperly failed to consider his claim of retaliation,

nor did he address the agency's finding that he failed to establish that

he was subjected to retaliation. Accordingly, we find that complainant's

retaliation claim is not properly before this Commission.

2 In regard to complainant's contentions on appeal, we note that he

provided no evidence that the postponement of the hearing after the first

day of testimony prejudiced his case in any way. Moreover, the decision

to bifurcate the processing and develop the record on the compensatory

damages claim after a finding of discrimination is within the discretion

of the AJ. See Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO-MD-110), as revised, November 9, 1999, at 7-10.

3The 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.

4 An individual with insulin dependent diabetes may be able to demonstrate

that his/her impairment imposes restrictions on one or more major life

activities that are substantially limiting. In the matter before us,

however, complainant has failed to produce evidence that indicates

whether and to what extent he relies on insulin and/or is otherwise

substantially limited.