0120061284
05-02-2008
Stephan A. Jozlin, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Stephan A. Jozlin,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200612841
Hearing No. 230-2004-00184X
Agency Nos. 200J-0515-2003103862; &
200J-0515-2005103325
DECISION
Complainant filed a timely appeal with this Commission regarding his
contention that the agency was not in compliance with its November 3,
2005 final decision. The appeal is accepted pursuant to 29 C.F.R. �
1614.504(b).2
Following an investigation, the case was transferred to an EEOC
Administrative Judge (AJ). The AJ conducted a hearing, and issued a
decision on September 26, 2005. The AJ concluded that complainant was
discriminated against on the bases of disability (osteoarthritis in
his left knee) and in reprisal for prior protected activity when on or
about April 8, 2005, and May 2, 2005, the Medical Center's reasonable
accommodation committee determined that he was not disabled and denied
his reasonable accommodation request. By final decision dated November 3,
2005, the agency fully implemented the AJ's decision.
The agency implemented the AJ's order which required the agency to:
1. Due to complainant's inconsistency regarding his reasonable
accommodation suggestions,3 complainant and the agency should engage in
the interactive process to determine if there is a room that could be
complainant's office so patients can be brought to him or so he could
go to the patients within his medical restrictions.
2. Provide training to responsible management officials and the agency's
reasonable accommodation committee regarding its obligations under the
Rehabilitation Act.
3. Post a notice at the Battle Creek Medical Center for a period of 60
calendar days, which specifies that the facility will no longer engage,
or otherwise tolerate, any act(s) of illegal employment discrimination
in the workplace.
The AJ concluded that complainant was not entitled to back pay or
compensatory damages. The AJ found that complainant offered no evidence
to support a claim of compensatory damages and such damages would not
be assumed. The agency fully adopted the AJ's decision.
By e-mail dated November 25, 2005, complainant notified the agency that
the accommodation process "has been a dismal failure." Specifically,
complainant notified the agency that "the committee has reportedly met
three times, but they do not respond to my written request." On December
9, 2005, the agency issued a Memorandum "Interim Measures and Reasonable
Accommodation," to complainant, in which the agency listed interim and
long-term accommodations for complainant's disability. The Memorandum
stated "if you continue to disagree with the above- listed accommodations,
you may request a Reasonable Accommodation Committee review."
Thereafter, on December 12, 2005, the complainant filed the instant
appeal. In the instant matter, complainant alleges that the agency
had not complied with the order issued by the AJ on September 26, 2005.
Specifically, complainant argued that the agency had not engaged in an
interactive process as outlined by the AJ in order to provide him with
a reasonable accommodation. Complainant claimed that the agency has
denied him what was ordered by the AJ and agreed to by the agency in
its final order. Moreover, complainant alleged that the agency denied
his request that patients be directed to his office as a reasonable
accommodation, so it has not complied with the AJ's decision to engage
in an interactive process.4
In response to complainant's appeal, the agency stated that it
complied with all the corrective action specified in its November 3,
2005 final order. The agency indicates that when the instant appeal
was filed, complainant was already assigned to the office located in
Room 1186 of Building 2. The agency also indicates that a fully-equipped
examination room was located immediately adjacent to complainant's office.
Additionally, Mental Health Clinic patients were seen by complainant
either in his office or the adjacent examination room. The agency
further explained that acute mental health patients who presented
voluntarily or who were brought involuntarily to the Admission Area by
local police officers could not be seen in complainant's office or the
adjacent examination room because of the threat of physical harm to the
patients themselves, to staff, and to other patients or visitors.
The agency also presented several documents to show that from November
2005 through February 2006, it engaged in an interactive process with
complainant to determine the proper reasonable accommodation. The
documentation includes a chronology delineating numerous meetings, e-mail
exchanges, and memoranda evidencing the agency's actions. The agency
further alleged that as a part of the accommodation process, the Chief,
Psychiatry Service (CB), appointed an Acting Chief, Social Work Service
(PS), to serve as a neutral mediator between the agency and complainant.
The record reveals that PS and complainant met on November 16, 17 and 22,
2005; December 2, 9, and 23, 2005; and January 20, 2006.
The agency further alleged that meetings between CB and complainant
occurred on December 1, 9, 19 and 30, 2005; and January 30, 2006.
According to the agency, these meetings were moderated by PS and
complainant was represented by the union steward. The agency alleged that
during all these meetings, complainant refused to discuss or even consider
proposed accommodations beyond his "non-negotiable" demand that he see all
patients in his office. The agency further explained that by Memorandum,
dated February 9, 2006, CB informed complainant that effective February
23, 2006, all of his patients would be brought to him. The Memorandum
also informed complainant that he would have available the following
accommodations: (1) a motorized wheelchair with leg supports, this would
include a seating evaluation performed by the Physical Rehabilitation
Service; (2) continued availability of nursing staff to assist with
physical examinations; (3) a device to assist with pushing of elevator
buttons and automatic door openers; (4) time for physical therapy; (5)
re-configuration of his office; (6) a cane, if needed/desired; and (7)
if, in the future, a Physician Assistant position becomes available,
he would be considered for that position.
In the instant case, the Commission finds that the agency has submitted
sufficient evidence in support of its determination that it complied
with the specific terms of the AJ's order. Upon review of the record,
we find that the agency engaged in the interactive process with
complainant to accommodate his disability. Moreover, we find that the
agency accommodated complainant's disability. Accordingly, we find that
complainant's allegation of non-compliance is not supported by the record.
Accordingly, we deny the appeal.
As set forth herein, we find that the agency is in compliance with its
final order. In light of the foregoing, we hereby direct the agency
to comply with the Order below, which directs the agency, to the extent
it has not done so, to provide any additional relief ordered by the AJ
to which complainant may be entitled. If the agency does not comply,
complainant may file a petition for enforcement of the Order below,
pursuant to 29 C.F.R. � 1614.503.
ORDER
To the extent that the agency has not already done so, the agency is
ordered to take the following remedial action within thirty (30) days
of the date this decision becomes final:
(1) The agency should provide training as to its obligations under the
Rehabilitation Act to the management officials who denied complainant
a reasonable accommodation in the present matter, and regarding their
obligation not to restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings under, the Federal
equal employment opportunity laws. The Commission does not consider
training to be a disciplinary action. [For purposes of clarification,
we specify that the officials referenced for training are the individuals
identified by name in the Administrative Judge's decision in her findings
of discrimination].
(2) The agency shall consider taking disciplinary action against
the management official(s) identified as being responsible for the
discrimination perpetrated against complainant. The agency shall report
its decision. If the agency decides to take disciplinary action, it
shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
(3) The agency shall post a written notice for ninety (60) days in
conspicuous places that discrimination has been found on this complaint
as stated in the posting provision below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Battle Creek Medical Center
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 2, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2We note that the agency argues on appeal that the complainant's appeal
is untimely as it was not filed within 30 days of its November 3, 2005
final decision. However, we find that in his appeal complainant alleged
that the agency had failed to comply with the terms of its final order,
he is not appealing the agency's findings and remedy. Accordingly,
pursuant to 29 C.F.R. �1614.504 (b), complainant's appeal is timely.
3 Specifically, the AJ noted that the agency attempted many time to
accommodate complainant over a several year period, and complainant was
often difficult to communicate with. The AJ found that complainant often
failed to focus clearly on what his suggested accommodations exactly
were, and/or why those that were already granted were not satisfactory
or effective. The AJ further found that when trying to get him to clarify
this during the hearing, he often failed to answer the questions directly
and went off on tangents or he would not answer with clear unequivocal
information. For example, the AJ found that during the hearing it
appears that complainant believed that Room 1186 could be his office.
However, during cross-examination, it appears that when this was at one
time discussed with him, he complained that it was too small because he
was claustrophobic. During the hearing, he claimed he could use it and
go to the patient in the holding room.
4 It is also noted that complainant also alleged subsequent retaliation
after the AJ's decision. We remind complainant that such matters should
be addressed with an EEO counselor.
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0120061284
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061284