05A30073
03-27-2003
Daniel Santiago, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Daniel Santiago v. Department of Veterans Affairs
05A30073
March 27, 2003
.
Daniel Santiago,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A30073
Appeal No. 01A12431
Agency No. 98-4356
Hearing No. 320-AO-8240X
DENIAL OF REQUEST FOR RECONSIDERATION
Daniel Santiago (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Daniel Santiago v. Department of Veterans Affairs, EEOC
Appeal No. 01A12431 (September 5, 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).
BACKGROUND
Complainant alleged discrimination on the bases of disability (psychosis
and schizophrenia) and retaliation (prior EEO activity) when:
in June 1998, he was detailed from the position of Housekeeping Aide
to Food Service Worker, when he was never advised of the duties or
shift responsibilities for the new position or provided a reasonable
accommodation permitting him to learn the essential duties for the
position of Food Service Worker;
on July 17, 1998 and July 24, 1998, he was presented Progress Notes
outlining his need for improvement in the performance of his duties
as Food Service Worker;
on July 30, 1998, he received a Letter of Counseling for inappropriate
conduct, misuse of government property, and failure to follow
instructions as a Food Service Worker; and
on September 4, 1998, he was removed from his position of Housekeeping
Aide, WG-2, for unacceptable performance.
In our previous decision, the Commission affirmed the final agency order.
Specifically, we found that the Administrative Judge's (AJ) ultimate
finding, that unlawful employment discrimination was not proven by a
preponderance of the evidence, is supported by the record.
In his request for reconsideration, complainant contends, among other
things that the agency discriminated against him based on his disability.
Complainant contends that he has a history of mental disability.
Complainant also contends that he asked for a reasonable accommodation,
and instead the agency changed him to another division, and that he did
not have enough time to learn the new job. Finally, complainant alleged
that the AJ admitted at the hearing that he was not satisfied with the
way that the agency handled his complaint, but, instead of correcting
the agency's mistakes, the AJ just ruled on behalf of the agency.
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that the agency articulated legitimate nondiscriminatory
reasons for its actions. Specifically, the AJ found that complainant
provided no specific medical documentation regarding his impairment, nor
what accommodation the agency could have provided to allow him to perform
the essential functions of the job without endangering himself and others.
The AJ noted that complainant maintained that he needed more time to
learn the job and to be placed in a stress-free environment. The AJ
found that the agency allowed complainant 67 days to learn the job, but
he was unable to perform the essential functions of the position without
endangering the safety of others. The AJ also found that complainant
provided no evidence that with additional time he could have learned the
essential functions of the position without endangering the safety of
others. The AJ found that complainant's trainer, a coworker, and other
employees complained that complainant was not diligent in learning.
The AJ found that complainant's duties including matching a card on the
tray with the room and patient's name, that delivering food trays was an
essential function of the position, and that on two occasions complainant
delivered trays to the wrong patients. The AJ concluded that this by
itself was a legitimate reason for complainant's termination. Finally,
the AJ concluded that the agency could no longer rely on complainant
to perform the essential functions of the job without endangering others.
In his appeal, complainant alleged that this entire case seemed to
focus more on the things he did wrong rather then focus on the things
complainant had requested for reasonable accommodation. Complainant
alleged that the agency focused on the two hours that were given to him
to attend church on Sundays rather than his need for the medical and
physical accommodations requested.
ANALYSIS AND FINDINGS
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.
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.
After a careful review of the record, the Commission finds that the
previous decision correctly held that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Specifically, the record shows that
the agency reasonably accommodated complainant with regard to learning
the essential functions of the position, the agency provided complainant
with much more extra time to learn the duties than it allowed other
employees. The record also reveals that after this training complainant
was still not able to perform the essential functions of the position in
question without endangering the health and safety of himself or others.
The record reveals that complainant on two different occasions delivered
the wrong food trays to patients, and if the mistakes were not caught,
it could have had serious adverse medical consequences for these patients.
CONCLUSION
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. The decision in EEOC
Appeal No. 01A12431 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
March 27, 2003
__________________
Date