William M. Young, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 4, 2003
01A30890 (E.E.O.C. Dec. 4, 2003)

01A30890

12-04-2003

William M. Young, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


William M. Young v. Department of Veterans Affairs

01A30890

December 4, 2003

.

William M. Young,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A30890

Agency No. 200I-3178

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Licensed Practical Nurse (LPN), GS-6, at the VA Medical

Center, at Bay Pines, Florida. Complainant was assigned to Unit 4D,

an Outpatient Clinic, prior to requesting Leave Without Pay (LWOP) for

medical reasons on November 30, 2000.<1> On or about April 10, 2001,

complainant informed the Nurse Manager (N1) that he was ready to return

to work. Shortly thereafter, N1 informed complainant that he would be

reassigned from his LPN position on Unit 4D to another LPN position on

Unit 3C. Believing he was a victim of discrimination, complainant sought

EEO counseling and subsequently filed a formal complaint on June 17, 2001,

alleging that he was discriminated against on the basis of disability and

in reprisal for prior EEO activity when, after an extended period of sick

leave and LWOP, management informed him that he was being reassigned to

Unit 3C, and such reassignment changed his working conditions by changing

his permanent tour of duty and by requiring him to lift heavy patients.<2>

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested a hearing, but subsequently with drew such request. Therefore,

the agency issued a FAD.

In its FAD, the agency concluded that complainant established a prima

facie case of reprisal discrimination, but failed to establish a prima

facie case of disability discrimination. The FAD further found that the

agency articulated a legitimate, nondiscriminatory reason for its action;

namely, while complainant was on leave from November to April, there

was a nursing shortage and a hiring freeze which required management

to fill complainant's position on Unit 4D. Upon complainant's return

there were no openings on Unit 4D, therefore, complainant was assigned

to Unit 3C. The FAD then found that complainant failed to establish,

by a preponderance of the evidence, that the agency's proffered reason

was pretext. Additionally, under the reasonable accommodation theory,

the FAD found that there is no persuasive evidence of record that

management knew, or should have known, that complainant requested or

required a reasonable accommodation. The FAD found that complainant

was not denied a reasonable accommodation.

On appeal, complainant asks that we find that he was subjected to

discrimination on the alleged bases. Complainant additionally submitted

documents in support of his appeal, which he asserts should have been

included in the report of investigation but were not. The agency

asserts in its response, that even considering the documents submitted

by complainant on appeal, complainant has failed to establish that he was

subjected to discrimination. The agency requests that we affirm the FAD.

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission.

29 C.F.R. � 1614.405(a).

We conclude that the instant case is properly analyzed using a disparate

treatment framework. In so finding, we note that complainant does not

assert anywhere in the record that he asked for reasonable accommodation.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

He must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming arguendo that complainant is an individual with a disability,

and otherwise established a prima facie case of disability and reprisal

discrimination, we find that the agency has articulated legitimate and

nondiscriminatory reasons for the reassignment. We further find that

complainant has not shown, by a preponderance of the evidence, that

these reasons are pretext for reprisal or disability discrimination.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final decision.

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 4, 2003

__________________

Date

1 The record is devoid of any indication that complainant's Leave Without

Pay was a form of reasonable accommodation within the meaning of the

Rehabilitation Act.

2 Complainant alleges that he could not lift heavy patients due to

bursitis in his left shoulder, degenerative disk L-5, and nerve damage

in his lower spine.