01A10408
07-25-2002
Robert P. Geistweit, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert P. Geistweit v. Department of Veterans Affairs
01A10408
July 25, 2002
.
Robert P. Geistweit,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A10408
Agency No. 96-1168
Hearing No. 340-97-3106X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that he was discriminated against on the bases of
his disabilities (lung condition, adjustment disorder with anxiety
mood) in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. when:
he was denied a reasonable accommodation; and
on November 7, 1995, the agency failed to promote him to GS-679-4/5.<1>
We will assume, for the purposes of this appeal, that complainant has
established that he is an individual with a disability within the meaning
of the Rehabilitation Act. Regarding complainant's assertion that the
agency denied him a reasonable accommodation, we note that under the
law federal agencies must make reasonable accommodation to the known
limitations of qualified employees or applicants with disabilities,
unless to do so would cause undue hardship. 29 C.F.R. � 1614.203(c).
In this case, the agency was not obligated to provide complainant with a
reasonable accommodation because during the pertinent time, the agency had
no reason to know that complainant had a covered disability for which he
required an accommodation. See EEOC's Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act (Mar. 1, 1999), at Answer to Question 6; see also EEOC's Policy
Guidance on Executive Order 13164: Establishing Procedures to Facilitate
the Provision of Reasonable Accommodation (Oct. 20, 2000), at II.D.,
Answers to Questions 16, 17 (providing that "an agency is entitled to know
that an employee or applicant has a covered disability that requires a
reasonable accommodation.� We affirm the Administrative Judge's factual
finding that complainant had never requested that the agency reasonably
accommodate his disabilities before August 29, 1995, because this finding
is supported by substantial evidence. See 29 C.F.R. � 1614.405(a)
(all post-hearing factual findings by an Administrative Judge will be
upheld if supported by substantial evidence in the record).
Regarding complainant's assertion that he was denied a promotion to
a GS-679-4/5 Medical Clerk position because of his disabilities,
we affirm the Administrative Judge's finding of no discrimination
because there is no evidence that the selecting officials were aware of
complainant's impairments at the time of the selection. Accordingly,
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 final agency order because
the Administrative Judge's ultimate finding, following a hearing, that
unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record. Regarding complainant's
assertion that he was denied a reasonable accommodation
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
July 25, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.