05A30268
03-04-2003
Thomas E. Cleland, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Thomas E. Cleland v. Department of Veterans Affairs
05A30268
03-04-03
.
Thomas E. Cleland,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A30268
Appeal No. 01991302
Agency No. 97-1588
Hearing No. 120-98-9247X
DENIAL OF REQUEST FOR RECONSIDERATION
Thomas E. Cleland (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Thomas E. Cleland v. Department of Veterans Affairs, EEOC
Appeal No. 01991302 (October 16, 2002). EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In the initial decision, complainant alleged discrimination on the bases
of disability<1> and reprisal when: (1) beginning on December 16, 1996,
until March 23, 1997, management placed complainant on sick leave status;
(2) on March 24, 1997, through May 1, 1997, management placed complainant
in an absent without leave (AWOL) status; and (3) on April 25, 1997,
complainant received four checks by certified mail from the agency
without pay stubs or documentation to indicate why they were sent.
The record reveals that in a previous decision, on April 19, 1996, an
Administrative Judge (AJ) found that the agency failed to reasonably
accommodate complainant's disabilities and retaliated against him for
bringing the original complaint.<2> The agency found that complainant
was discharged based on disability but not on reprisal. As part of
the equitable relief, the AJ ordered that complainant be reinstated
into his position or a similar position and that he receive backpay
with interest and other benefits lost as a result of the discriminatory
discharge. On October 1, 1996, the agency adopted the administrative
judge's recommended decision in part. On December 6, 1996, the agency
notified complainant that it would pay backpay from 1992 to December 15,
1996, and ordered complainant to report to work on December 16, 1996.
On December 13, 1996, complainant's doctors reported that complainant
could not return to work because of his disability. Neither complainant
nor his doctors offered a prognosis for complainant's recovery and
ability to return to work. Thereafter, the agency carried complainant
in a sick leave and AWOL status (the AWOL was later changed to LWOP).
On April 27, 1997, complainant filed the complaint at issue. Following
an investigation, complainant requested a final agency decision (FAD).
The FAD found that the agency had provided legitimate, nondiscriminatory
reasons for its actions, namely, that complainant was told that he would
need to request leave after he failed to report to duty on December
16, 1996. On March 21, 1997, complainant was told that his sick leave
would be exhausted on March 23, 1997. Complainant was sent a form to
request either annual leave or leave without pay. Complainant did not
respond to the letter in a timely way and was placed in an AWOL status.
The FAD maintained that once complainant requested leave, on May 1, 1997,
his status was changed to leave without pay. The FAD found that the four
checks were sent to complainant after he failed to return documentation
regarding how he wanted the checks forwarded to him. The FAD maintained
that in order not to delay complainant's payment, the checks were sent
by certified mail. The Commission affirmed the agency's FAD.
In his request for reconsideration, complainant contends that the decision
involves a clearly erroneous interpretation of material fact or law.
Complainant maintains he should have been allowed, as ordered by the AJ,
in the previous complaint, a twenty day period in which to determine
whether to accept the Recreational Therapist position, and if necessary,
the time period should have been extended for a reasonable period of time
based upon complainant's doctor's assessment.<3> Complainant contends
that the agency failed to provide him any leeway for his return and
arbitrarily set the December 16, 1996 return date. Complainant indicates
that the agency adopted a �penal attitude� against him. He maintains
the agency should have allowed him whatever additional time he needed
in order for he and his physicians to determine when he could return
to work. Moreover, complainant contends that the agency's suggestion
that he pursue a worker's compensation claim in lieu of accepting back
pay once he returns to employment is additional evidence of pretext and
should have been recognized as such.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. We find that complainant
failed to show that the agency did not provide him a reasonable period
of time to return to his position.<4> Although the record shows that
complainant indicated on December 13, 1996, that he could not return
to work, complainant failed to provide the agency with a prognosis
of his recovery or his ability to return to work. The record shows
that complainant took leave from his position from December 16, 1996
to May 1997. We find that complainant failed to show that the agency
was unreasonable in giving him a restart date or in extending leave to
him for his absence. We find that complainant has failed to show that
the decision involved a clearly erroneous interpretation of material
fact or law. Therefore, the decision in EEOC Appeal No. 01991302
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_______03-04-03___________
Date
1 Complainant's disabilities included learning disabilities: dysphasia,
dyslexia, short term memory loss and neurological processing dysfunction,
post traumatic stress disorder, depression and anxiety. His physical
disabilities included bilateral hearing loss, asthma, bronchitis, upper
respiratory problems, irritable bowel syndrome and hemorrhoidal problems.
2 We assumed, without finding, for the purposes of analysis only, that
complainant was an individual with a disability.
3 The AJ ordered that �complainant shall be offered this Recreational
Therapist position with at least a 20 (twenty) day period in which to
determine whether to accept the position and, if necessary, this time
period should be extended for a reasonable period of time based upon
complainant's doctor's assessment.�
4 Complainant provides no evidence that he requested an extension of
his reinstatement date.