01a35429
11-04-2004
Mark Natalie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mark Natalie v. Department of Veterans Affairs
01A35429
November 4, 2004
.
Mark Natalie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A35429
Agency Nos. 97-0521; 98-1642; 98-1661; 98-2344; 99-5194
Hearing Nos. 320-97-8329X; 320-99-8494X; 320-99-8495X; 320-99-8496X;
320-A1-8003X
DECISION
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.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Contact Representative at the
agency's VA Regional Office, Lakewood, Colorado facility, filed a
formal EEO complaint on December 14, 1996, alleging that the agency
had discriminated against him on the basis of disability (vertigo and
inner ear infection) when it failed to provide him with a reasonable
accommodation (Agency No. 97-0521). Complainant further alleged that the
agency discriminated against him on the basis of disability and reprisal
when on November 20, 1997, after becoming ill, complainant requested 2
hours of annual leave or leave without pay from his Supervisor (S1).
S1 informed complainant that he had been instructed by the agency's
Veterans Services Officer (VSO) that leave could not be granted without
a doctor's statement (Agency No. 98-1642). Complainant also alleged
that the agency discriminated against him on the basis of disability and
reprisal when on March 4, 1998, the agency admonished him for failure
to provide medical documentation (Agency No. 98-1661). Complainant
also alleged that the agency discriminated against him on the basis of
disability and reprisal when on May 8, 1998, the agency singled him out
and treated him differently when it required him to provide a physician's
statement for annual leave in lieu of sick leave, taken in April and May
of 1998. (Agency No. 98-2334). Finally, complainant alleged that the
agency discriminated against him on the basis of disability and reprisal
when S1 was advised to place complainant on AWOL status, which resulted
in a five (5) day suspension for the period August 16, 1999 to August 20,
1999 (Agency No. 99-5194).
The record reflects that complainant was employed by the agency as a
Contact Representative, GS-962-5, Veterans Service Division at the VA
Regional Office in Lakewood, Colorado. Complainant's duties involved
handling Freedom of Information Act and Privacy Act matters which were
time sensitive. As complainant was the only person at the facility who
performed these matters, the agency alleged that it was important that
he limit his absences as much as possible. The record also reflects
that in 1995, complainant contracted a virus which affected his inner ear
and he suffered from vertigo as a result. Complainant's physician stated
that complainant could not return to work until the disabling vertigo was
gone. In June of 1996, complainant proposed to the VSO that he be allowed
to work at home, but this request was denied due to insufficient Privacy
Act requests. The VSO indicated that she would need specific information
from complainant's treating physician regarding duties he could perform at
home, the length of his rehabilitation and when he could be expected to
return to full duties. In October of 1996, the VSO approved on a trial
basis complainant's request to work at home on Tuesdays and Thursdays,
while he continued to work in the office the other days of the weeks.
In December of 1996, complainant's physician stated that he had improved
to the point where he could perform his life activities and he was no
longer incapacitated. Another physician reviewed complainant's file
and stated in August of 1997 that he could return to work full-time in
the office. Based on this opinion, the agency directed complainant to
return to work full-time in the office.
In January of 1998, complainant's physician wrote him a blanket medical
excuse, and stated that he needed frequent bed rest and that he would be
unable to come to work when his vertigo was worse. On January 21, 1998,
the VSO notified complainant that she was placing him on AWOL for being
absent on January 12-13, 1997 and being absent for one hour on January 14,
1997, because he did not submit adequate medical documentation. In March
of 1998, a physician examined complainant and diagnosed him with left
ear Meniere's disease with moderately severe irreversible hearing loss.
The physician stated that the disease would render complainant unable
to function normally at work or at home when he experienced an attack
of the disease, and that he should have all consideration for a work
situation that could accommodate attacks of vertigo. In April of 1999,
complainant provided S1 with some alternative accommodations, but he
did not provide any medical documentation to support his requests for
accommodations at the office. In May of 1999, complainant's physician
stated that the Meniere's may cause come discomfort for complainant
coming to work, but it did not affect a major life activity.
Believing he was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal EEO complaints.
Complainant's complaints were consolidated for investigation, and 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 found that complainant failed to establish that
he was substantially limited in any major life activities, or that he
had a record of a substantially limiting impairment or that the agency
regarded him as having such an impairment. As such, the AJ found that
complainant is not an individual with a disability and thus he is not
covered by the Rehabilitation Act. The AJ further found that complainant
failed to establish a prima facie case of disability discrimination on
his allegations. However, with regard to complainant's allegations
upon which he alleged retaliation, the AJ found that he established
a prima facie case of retaliation. However, the AJ found that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ also found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. The agency's final order implemented the
AJ's decision. On appeal, complainant restates arguments previously
made at the hearing. Specifically, complainant alleges that the agency
continually failed to accommodate his disability, and that he presented
adequate documentation to support his requests for accommodation.
In response, the agency restates the position it took in its FAD, and
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. Initially,
the Commission finds that even assuming, arguendo, that complainant is
an individual with a disability, and that he established a prima facie
case of disability discrimination, we concur with the AJ's findings
that the agency articulated legitimate, nondiscriminatory reasons
for its actions.<1> AJ's Decision at 15. In so finding, we concur
with the AJ's findings that between December of 1996 and November 10,
1997, agency management did not accommodate complainant in the manner
he requested because he did not submit documentation substantiating
the need for his accommodation. The record reflects that in December
of 1996, management allowed complainant to work at home for two (2)
days per week, although complainant provided no medical documentation.
The AJ noted that in November of 1997, medical documentation submitted
did not support complainant's contention that he needed to work at home.
AJ's Decision at 14. Further, the AJ noted that the agency placed
complainant on sick leave restriction in November of 1997 due to the
large number of hours of sick leave he took without providing medical
documentation of his illness. Id. In addition, the AJ found that
regarding complainant's absences in January of 1998, agency management
issued him an admonishment for 45 hours of AWOL, as complainant was
absent and did not provide acceptable medical excuses. As such, the AJ
found that complainant did not comply with the terms of the sick leave
restrictions. The AJ also noted that regarding complainant's absences
in April and May of 1998, he did not provide adequate documentation.
AJ's Decision at 15. Regarding complainant being placed on AWOL in
May of 1998 and May of 1999, we concur with the AJ's finding that the
agency provided legitimate, nondiscriminatory reasons for its actions,
as complainant was absent on numerous occasions and he did not submit
adequate documentation for his absences.<2> Id. As a result, the
Commission concurs with the AJ's finding that regarding complainant's
allegations of discrimination and/or retaliation, the agency articulated
legitimate, nondiscriminatory reasons for its actions.
In addition, we concur with the AJ's finding that complainant failed to
present evidence that it was more likely than not that the agency's
articulated reasons for its actions were more likely than not a
pretext for disability discrimination. As found by the AJ, regarding
complainant's allegations of disability discrimination, the agency did
not provide the accommodation initially requested by complainant, as
management sought a diagnosis of complainant's illness and he did not
provide a document verifying the need for the accommodation he sought.
AJ's Decision at 16. The AJ further noted that although complainant
sought to work at home full-time, without further credible medical
documentation, the agency's requirement that he work at the facility per
week from 9:00 a.m. to 2:30 p.m., in a clean and quiet area, so he could
leave while there is still light out, with adequate time for breaks when
his impairment flairs up, was adequate.<3> AJ's Decision at 10. Further,
the AJ found that complainant conceded that he did not comply with the
sick leave restrictions placed on him by the agency, and that was the
reason for the AWOL admonishments placed on him. AJ's Decision at 17. We
thus 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
November 4, 2004
__________________
Date
1 We note that the AJ found that complainant established a prima facie
case of retaliation, but nevertheless found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. AJ's Decision
at 18.
2 We note that complainant testified at the hearing that the reason he did
not provide the medical documentation requested by the agency, stating
that he should work at home full-time, was because he felt demeaned by
having to provide the documentation and by doing so, he wasted some
of the time he was on leave by attempting to find a medical excuse.
Agency management stated that there was no time limit for complainant
to provide the medical excuse. AJ's Decision at 18.
3 We note that the AJ personally toured the facility to determine whether
the working conditions were acceptable and consistent with complainant's
medical restrictions.