01A33493
06-28-2004
Lawrence M. McCoy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lawrence M. McCoy v. Department of Veterans Affairs
01A33493
June 28, 2004
.
Lawrence M. McCoy,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33493
Agency No. 200R-0526-2002103105
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Housekeeping Aid at the agency's Bronx Veterans Affairs
Medical Center, Bronx, New York. Complainant sought EEO counseling and
subsequently filed a formal complaint on May 15, 2002, alleging that he
was discriminated against on the basis of disability (permanent right
arm injury) when the agency harassed him and denied him a reasonable
accommodation of placement in a position of Motor Vehicle Operator; and,
when he was constructively discharged.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant was a qualified
individual with a disability in that he had an injury to his right arm
which resulted in permanent limitations in his ability to lift, reach
over head, to push and to pull objects. The agency determined that with
accommodations, complainant was able to perform the essential functions
of his job as a housekeeping aid. According to the agency's decision,
however, complainant did not establish he was subjected to harassment.
Specifically, the incidents alleged did not constitute harassment because
the decision to disqualify complainant for the position of Motor Vehicle
Operator was based on his lack of proper licensing and not because he had
a disability. In addition, the agency decided that complainant had not
shown there were any negative verbal statements related to his physical
condition which would create a hostile work environment.
Addressing complainant's claim that he was denied any reasonable
accommodation for his right arm condition and, in particular, that he
was denied placement in the position of Motor Vehicle Operator, the
agency concluded that complainant was given the accommodation of light
duty work. In particular, the agency stated that it placed complainant
in an alternate position distributing clean linens which did not require
complainant to do any duties involving lifting, pushing or pulling.
The agency found that the reason for not placing complainant in the
position of Motor Vehicle Operator, was because he did not have the
appropriate license.
Responding to complainant's claim that he was forced to retire because
he was not given a reasonable accommodation and that this amounted to
a constructive discharge, the agency found that complainant had not
demonstrated that a reasonable person would have retired under the same
circumstances.
On appeal, complainant contends the agency erred in dismissing one of his
claims for untimely counselor contact. Complainant further asserts that
he was subjected to offensive remarks relating to his medical condition,
on a daily basis. He further argues that the agency erred in finding that
he was given a reasonable accommodation and in finding no discrimination.
ANALYSIS AND FINDINGS
As a preliminary matter, complainant claims on appeal that the agency
erred in dismissing his claim that he was denied a wage increase
beginning in 1999. The agency dismissed the claim for untimely EEO
counselor contact based on complainant's failure to raise the issue
until March 2002. Complainant contends that he was not aware he could
raise the issue. Regulations require that complaints of discrimination
be brought to the attention of the EEO Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. EEOC Regulation 29 C.F.R. � 1614.105(a)(1). The
Commission has adopted a "reasonable suspicion" standard (as opposed to
a "supportive facts" standard to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Regulations also provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. Applying these principles, the Commission finds that
complainant has not adequately explained the delay in raising this issue
with an EEO counselor. He has not demonstrated that he was prevented
from raising the issue or that he was not aware that discrimination
had occurred until this later date. For these reasons, the Commission
concludes the agency's dismissal was proper.
Turning to the merits of complainant's claim, complainant has claimed he
is an individual with a disability and that he was denied any reasonable
accommodation, but in particular, placement in the position of Motor
Vehicle Operator. We will assume, for purposes of our analysis, that
complainant is a qualified individual with a disability. Under applicable
regulations, an employer must provide a reasonable accommodation for a
qualified individual with a disability. 29 C.F.R.� 1630.9
In this case, the Commission finds that the evidence of record establishes
that the agency provided a reasonable accommodation for complainant's
condition in the form of placement in a position in the linen department.
In this position, complainant was responsible for handing out clean linens
and taking in soiled laundry. Complainant did not dispute that this
position gave him an effective accommodation for his inability to reach,
lift over 10 pounds and to push and pull. Subsequently, complainant
expressed dissatisfaction with the job based on his disinterest but
not because it did not provide him with an effective accommodation.
The agency responded even though it was not legally bound to do so, by
moving him to another position which required that he collect trash with
the help of a co-employee who performed the duties he was unable to do.
The record also reflects that complainant applied for the position of
Motor Vehicle Operator, during this same period of time, but that he was
disqualified because he did not hold the proper license. The record
established by a preponderance of the evidence that complainant was
already receiving an accommodation for his disability before he applied
for this position and that he sought this position because of his lack
of interest in his job.
Turning to complainant's claim that he was forced to retire because he
was denied a reasonable accommodation, as discussed above, the evidence
simply does not support that complainant was not receiving an effective
accommodation of his disability. Rather, on balance, the evidence
established that complainant was dissatisfied with his position in the
Housekeeping unit and he retired because he was not selected for the job
as a motor vehicle operator. Complainant's second level supervisor (S)
stated and complainant did not dispute, that S was not aware complainant
had applied for the motor vehicle driver position and sought the position
as a reasonable accommodation. In any event, complainant would not be
entitled to an accommodation of his choice but only that accommodation
which effectively addressed his disability and his ability to perform the
essential functions of his job. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act No. 915.002 (10/17/02) at 17.
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 (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
June 28, 2004
__________________
Date