01A30890
12-04-2003
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.