01a22872
07-31-2003
Rakesh K. Mehta, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Administration, Agency.
Rakesh K. Mehta v. Department of Veterans Administration
01A22872
07-31-03
.
Rakesh K. Mehta,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Administration,
Agency.
Appeal No. 01A22872
Agency No. 99-0272
Hearing No. 160-A0-8372X
DECISION
On April 24, 2002, Rakesh K. Mehta (hereinafter referred to as
complainant) filed an appeal from the March 14, 2002, final decision
of the Department of Veterans Affairs (hereinafter referred to as the
agency) concerning a complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
Complainant is a physician at a VMC and ran the hospital's oncology
clinic. He filed a formal complaint on March 15, 1999, claiming
discrimination based on national origin (India), religion (Hindu),
and disability (injury to left foot) when (1) he was not provided with
a reasonable accommodation and excused from certain work duties; and
(2) he was harassed by two telephone calls to his home. The AJ issued
a decision without a hearing, finding no discrimination. The agency
implemented the AJ's decision, and this appeal followed.
With regard to (1), complainant stated that, in April 1998, he injured
his foot at work and had pain and difficulty walking; as of June 1998,
his doctor recommended that he work six hours a day, and, by August,
he was allowed to work eight hours. In July, his new supervisor (S1)
offered complainant a motorized wheelchair so that he could navigate the
hospital without walking, but he refused, finding her offer insulting and
humiliating. Instead, as an accommodation for his injury, he sought to be
excused from on-call/night duties, which rotated among hospital doctors.
With regard to (2), complainant stated that, in December 1998, he
informed S1 that he would be absent for ten days because of a death
in his family. Before he left, S1 called him to, among other things,
inquire about coverage of his clinic and appointments. Also, in late
January 1999, the Administrative Officer (AO) called his home when she
could not locate him at the hospital. Complainant claimed that these
phone calls to his home were harassment by the agency.
The AJ found initially that, because complainant's injury was not
permanent, complainant was not a person with a disability entitled to
coverage under the Rehabilitation Act. With regard to the claims based
on harassment, the AJ found no evidence to show that the agency's actions
were based on complainant's national origin or religion and held that
the actions were not sufficiently severe or pervasive to rise to the
level of discriminatory harassment.
On appeal, complainant contended that his injury was a "permanent
partial disability," in that, he was limited in walking and subsequently
developed arthritis in his foot; he also stated that he was depressed.
As a reasonable accommodation, complainant stated that he sought a change
in his work duties, with no night duty, on-call duty, and a limitation
on the number of patients, which he was denied. He also contended that
his supervisor "tortured" him, humiliated him, and insulted him when
she called him at home and suggested he use a wheelchair.
Disability Claim
Under the Commission's regulations, federal agencies are required
to make reasonable accommodation to the known physical and mental
limitations of a qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship.
29 C.F.R. �1614.203(c); 29 C.F.R. �1630.2(o); 29 C.F.R. �1630.2(p); see,
generally, EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, No. 915.002
(rev. October 17, 2002) (Guidance). As a threshold matter, one claiming
protection under the Rehabilitation Act must show that s/he is a person
with a disability as defined therein. A person with a disability is one
who has, has a record of, or is regarded as having, a physical or mental
impairment that substantially limits one or more major life activities.
29 C.F.R. �1614.203(a)(1). Major life activities include caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).
For purposes of further analysis, we assume without finding that
complainant is a person with a disability in the major life activity of
walking. The record shows that he was offered an effective reasonable
accommodation, i.e., a motorized wheelchair for mobility around the
hospital, which would allow him to effectively perform the essential
duties of his position--taking care of patients-- within his limitations.
Complainant rejected that reasonable accommodation and, instead,
sought removal of all duties he found troublesome and inconvenient.
A complainant is not entitled to the accommodation of his choice,
and an employer may choose among reasonable accommodations as long as
the chosen accommodation is effective. Guidance, Question 9 (p. 17).
Since complainant is disabled in walking, a motorized wheelchair
would have effectively accommodated him and allowed him to perform the
essential duties. We find that the agency met its burden to accommodate
complainant. We note, in addition, that complainant did not demonstrate
that other similarly situated employees were treated more favorably.
Harassment Claim
Harassment of an employee that would not occur but for that employee's
race, color, sex, religion, national origin, age, or disability
is unlawful, if it is sufficiently patterned or pervasive.<1> Frye
v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996).
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment, unless the conduct in question is very severe.
Backo v. United States Postal Service, EEOC Request No. 05960227 (June
10, 1996). In connection with the two telephone calls, we agree with the
AJ that the agency's inquiries to complainant by telephone were normal
business operations and did not constitute illegal or discriminatory
harassment.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and the preponderance of the evidence of record
does not establish that discrimination occurred.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
___07-31-03_______________
Date
1See, generally, Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18,
1999, as revised).