01A23197_r
12-22-2003
Wayne Bryant v. Department of Veterans Affairs
01A23197
December 22, 2003
.
Wayne Bryant,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23197
Agency Nos. 98-1507, 98-1514, 98-2140,<1> 98-3004
Hearing Nos. 120-99-6894X, 120-99-6859X
DECISION
Complainant appeals to the Commission from the agency's April 22, 2002
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (Black), color (black), reprisal, and disability
when: (1) the agency controverted his claim for workers' compensation;
(2) he was subjected to harassment when he was counseled (i.e., �Reports
of Contact�), not reassigned, not granted a leave of absence, and not
promoted or trained; and (3) the agency failed to provide him with a
reasonable accommodation resulting in his constructive discharge in
July 1998.
On March 26, 2002, following a hearing, an EEOC Administrative Judge (AJ)
issued a decision finding no discrimination. Specifically, the AJ found
complainant failed to show that he was substantially limited in a major
life activity and was not, therefore, an individual with a disability.
With regard to complainant's workers' compensation claim, the AJ found
that complainant had not shown harm and, therefore, fails to state a
claim. The AJ found that even if complainant had shown harm, complainant
did not establish a prima facie case of discrimination with regard to the
workers' compensation claim. With regard to the non-selection, Reports
of Contacts, leave, and training, the AJ found that complainant failed to
rebut the agency's legitimate nondiscriminatory reason for its actions.
With regard to complainant's claim of hostile work environment, the AJ
found that the matters raised were not sufficiently severe and pervasive
enough to alter the conditions of employment and create a hostile
work environment. With regard to the constructive discharge, the AJ
found that complainant's resignation was voluntary and not a result of
intolerable working conditions. On April 22, 2002, the agency issued a
decision fully implementing the AJ's decision, which is the subject of
the instant appeal.
In complainant's brief on appeal, complainant states that he, "focuses
on his failure to accommodate claims in this appeal." Therefore, the
Commission will only render a decision on complainant's disability claim
for a reasonable accommodation. On appeal, complainant argues that, "he
was discriminated against based on disability when denied the reasonable
accommodation of re-assignment to the mail-room, and when the Agency
failed to take reasonable timely measures to find him an alternative
re-assignment." Complainant alleges he is a individual with a disability,
namely, anxiety and depression. He argues on appeal that, "his mental
condition changed as a result of harassment and retaliation by his two
immediate supervisors beginning in June 1997." Assuming, arguendo, that
complainant is an individual with a disability, we find that complainant's
requested accommodation is not reasonable. An employer does not have to
provide an employee with a new supervisor as a reasonable accommodation.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, EEOC NOTICE Number 915.002,
Question 33, (October 17, 2002). Complainant's request for re-assignment
is ultimately a request for a new supervisor, which is not required.
Therefore, complainant was not denied a reasonable accommodation.
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 22, 2003
__________________
Date
1Sometimes this is referred to by the agency
as 98-2410.