01a51566
12-28-2005
Veldon L. Tomlinson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Veldon L. Tomlinson v. Department of Veterans Affairs
01A51566
December 28, 2005
.
Veldon L. Tomlinson,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51566
Agency No. 200M-1295
Hearing No. 320-A1-8224X
DECISION
Complainant appeals to the Commission from the agency's November 8, 2004
decision finding no discrimination. Complainant alleges discrimination on
the basis of disability (back impairment) when from January 2000 through
August 7, 2000, his purported disability was not reasonably accommodated.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). After a hearing, the AJ issued
a decision on October 6, 2004, finding no discrimination. The AJ found
that assuming complainant was an individual with a disability, complainant
failed to show that he could perform the essential functions of the
position during the relevant period of time. The agency, on November
8, 2004, issued a decision implementing the AJ's decision finding no
discrimination. Complainant now appeals from the agency's November 8,
2004 decision.
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.
The AJ stated:
I find that from January 10, 2000, when [c]omplainant re-injured his
back until his return to his pharmacy technician position in August 2000,
[c]omplainant was unable to bend, stoop, or twist his body for more than
about 1 hour per day, even though the position required 7 or 8 hours of
bending, stooping, and twisting per day. He, therefore, was severely
limited with respect to being able to retrieve medications for customers.
There was no evidence of record showing that there was a plausible
accommodation that would have permitted [c]omplainant to bend, stoop,
or twist during that period. In conclusion, [complainant] was not able
to perform an essential function of the pharmacy technician position,
i.e., providing medications to pharmacy customers, from January 10,
2000, until about August 8, 2000.
We find that substantial evidence supports the AJ's findings that
complainant was unable to perform the essential functions of the
pharmacy technician position. Complainant has not shown that the AJ
mischaracterized the essential functions of the pharmacy technician
position. Complainant has also not shown that any accommodation
existed that would have permitted complainant to perform the essential
functions of the position. Therefore, we find that complainant was not
a qualified individual (with or without an accommodation) and that the
agency was therefore not required to provide him with an accommodation.
See 29 C.F.R. �1630.9. Thus, we find complainant has not shown, by a
preponderance of the evidence, that he has been discriminated against
on the basis of disability. We make this determination without making
a finding as to whether complainant is an individual with a disability
under the Rehabilitation Act.
The agency's decision finding no discrimination 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
December 28, 2005
__________________
Date