01a05891
08-14-2002
Mark A. Frioni v. Department of Veterans Affairs 01A05891 08-14-02 .Mark A. Frioni, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mark A. Frioni v. Department of Veterans Affairs
01A05891
08-14-02
.Mark A. Frioni,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05891
Agency No. 99-3855
DECISION
On September 9, 2000, Mark A. Frioni (hereinafter referred to as
complainant) initiated a timely appeal to the Equal Employment
Opportunity Commission (Commission) with regard to his complaint of
discrimination in violation of � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted by this
Commission in accordance with 29 C.F.R. � 1614.405. Based upon a review
of the record, and for the reasons stated herein, it is the decision of
the Commission to AFFIRM the final agency action.
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that he was discriminated against on the basis of his
disability (alcoholism and depression) when he was terminated effective
July 9, 1999, during his probationary period.
Complainant filed a formal EEO complaint raising the above-referenced
allegation of discrimination.<1> The agency accepted complainant's
complaint for processing, and conducted an investigation with regard to
the matter at issue. Subsequently, at complainant's request, the agency
issued a final decision, finding that complainant was not subjected
to discrimination as alleged. Specifically, the agency stated that
complainant was absent without leave (AWOL) on two occasions. Further,
the agency noted that complainant failed to provide documentation to
explain his absence for the majority of that time. It is from this
decision that complainant now appeals.
After a careful review of the record, the Commission finds that the agency
correctly determined that complainant was not subjected to discrimination
with regard to the matter at issue. A review of the record shows that,
even assuming that complainant had established a prima facie case of
disability discrimination, he failed to show that the agency's stated
reason for the action was pretextual.<2> Complainant does not deny that
he was AWOL for periods in excess of one week in April and June 1999.
While complainant provided the agency with a statement indicating that he
was receiving treatment at an inpatient rehabilitation program for three
of the days in question, he provided no further documentation despite
being advised by his supervisors of the need to do so.<3> Further, he did
not provide any documentation regarding his depression. The Commission
finds the agency's request for documentation to be reasonable, given
complainant's failure to report for work, or to otherwise contact his
supervisor for in excess of one week. Accordingly, it is the decision
of the Commission to AFFIRM the final agency decision.
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
_______08-14-02___________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1While complainant listed several other bases in his formal complaint,
he acknowledged, during the investigation, that he intended only to
pursue disability as a basis for discrimination.
2For purposes of this decision, the Commission assumes complainant is
an individual with a disability.
3It is noted that the statement from the Comprehensive Alcohol
Rehabilitation Programs indicated only that he had received treatment, and
did not offer a diagnosis or other information regarding his condition.