Mark Natalie, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 4, 2004
01a35429 (E.E.O.C. Nov. 4, 2004)

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.