01A21028
03-17-2003
Monte A. Servey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Monte A. Servey v. Department of Veterans Affairs
01A21028
March 17, 2003
.
Monte A. Servey,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A21028
Agency No. 97-1268
Hearing No. 230-99-4192X
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 Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
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, during the relevant period, complainant was
employed as a WG-5, Equipment Mechanic's Helper, at the agency's Ann
Arbor Medical Center facility in Michigan. On September 27, 1996,
complainant injured himself on the job injury while lifting equipment.
Complainant was placed on light duty and sedentary restrictions.
In addition, complainant was on a fifty (50) pound lifting restriction
and a 30 pound pushing/pulling restriction. On October 11, 1996,
complainant's physician changed his restrictions to 30 pounds lifting,
pushing and pulling.
The record reflects that on October 18, 1996, complainant was ordered to
assist his supervisor (S1: no known disability, no known prior protected
activity) in installing a Trane package unit. The record also reflects
that the unit weighted 140 pounds. On the same day, S1 instructed
complainant to remove a window air conditioning unit and install a window.
Complainant testified that he re-injured himself as a result.
Complainant filed a formal EEO complaint on March 10, 1997, alleging that
the agency had discriminated against him by subjecting him to a hostile
work environment on the basis of disability (right inguinal hernia)
and in reprisal for prior EEO activity when:
(1) on October 18, 1996, he was removed from a mandatory Occupational
Safety and Health Administration (OSHA) class for the engineering
section and
S1 made him lift, push and/or pull in excess of his restrictions on
several occasions.
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 show that the agency
discriminated against him on the basis of his disability. Specifically,
the AJ found that because complainant's disability was a temporary
condition, he could not establish that he had a disability as defined
by the Rehabilitation Act. The AJ also found that the evidence does
not support that complainant had any other disability or a history of
a disability. The AJ further found that there was no evidence that
agency officials perceived that complainant had a disability or was
regarded as disabled.
The AJ found that although complainant established a prima facie case
of reprisal, complainant failed to establish a of case of hostile work
environment. In particular, the AJ found that S1 was similarly hostile to
other employees in their work environment and conditions and that S1 was
hostile towards complainant long before he engaged in protected activity.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that many of his witnesses could hardly recall
the events due to the amount of time that had passed before the case
was heard before an AJ. Complainant also contends that the AJ erred
when she did not allow him to present additional proof of his service
connected disabilities. Complainant claims that he was subjected to
a hostile or offensive work environment when S1 denied him training
opportunities and ignored weight restrictions because of his disability
and/or prior protected activity. The agency did not submit a response
to complainant's appeal.
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.
In order to establish a hostile work environment claim based on
disability, complainant must prove: (1) he is a qualified individual with
a disability within the meaning of the Rehabilitation Act; (2) he was
subjected to unwelcome harassment; (3) the harassment was based on his
disability; (4) the harassment was sufficiently severe or pervasive to
alter a term, condition, or privilege of employment; and (5) some factual
basis exists to impute liability for the harassment to the employer.
See Fox v. General Motors, 247 F.3d 169 (4th Cir. 2001).
We find no basis in the record evidence to support this claim. In point
of fact, the record establishes that S1 treated complainant, and most
of his co-workers in a hostile fashion. Complainant testified that
S1 was aggressive towards him even before his injury or participation
in protected activity. The record also shows, that complainant and
S1 almost got into a fist fight and S1 threatened to contract out
complainant's job prior to his injury. Consequently, and assuming
that complainant is a qualified individual with a disability within the
meaning of the Rehabilitation Act, we find that complainant failed to
present sufficient evidence to show that S1's behavior was motivated by
either of complainant's articulated bases.
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 referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
disability. We discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including complainant's contentions
on appeal 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
March 17, 2003
__________________
Date