01A22912
08-19-2002
David A. West, Complainant, v. Michael Heyman, Secretary, Smithsonian Institution, Agency.
David A. West v. Smithsonian Institution
01A22912
August 19, 2002
.
David A. West,
Complainant,
v.
Michael Heyman,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A22912
Agency No. 0103020101
Hearing No. 100-A1-7893X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Security Assistant at the agency's
Office of Protection Services, filed a formal EEO complaint on February
1, 2001, alleging that the agency had discriminated against him on the
basis of disability (ruptured disc and right hand injury) and reprisal
for prior EEO activity when:
his request for continuation of pay for reinjury to his right hand was
denied on November 8, 2000;
he was forced to perform duties using his disabled hand between March
20, 1997, and December 16, 2000;
upon retiring based on his disability, he was paid only 22.5 hours,
rather than 40 hours, for unused annual leave.<2>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
Regarding items one and three, the AJ concluded that, assuming, arguendo,
complainant is a qualified individual with a disability, he fails to
establish a prima facie case of disability discrimination. The AJ found
that complainant offered no evidence of any comparator who received COP
for an injury recurrence. The AJ further found that even if complainant
had established a prima facie case, his claim would nonetheless fail
because the agency proffered an unrebutted reason for its action.
Specifically, the agency indicated that, pursuant to COP regulations,
an employee is only entitled to payment for the initial injury and not
for subsequent reinjuries. Complainant offered no evidence that this
reason was a pretext masking discriminatory animus. Similarly for
item three, the agency submitted evidence that complainant had only 22.5
hours of annual leave remaining at the time of his disability retirement.
Complainant does not rebut this evidence. Thus, the AJ determined that
complainant was not discriminated against.
The AJ also concluded, as to the basis of reprisal, that complainant
could not establish a prima facie case because he could not demonstrate
that he was denied leave to which he was entitled. Further, the AJ
found, complainant could not demonstrate that the determination that
complainant was entitled to 22.5 hours of annual leave reimbursement
was causally linked to complainant's prior EEO activity.
With respect to item two, the AJ dismissed this issue as being subsumed
by the constructive discharge claim complainant currently has pending
before the Merit Systems Protection Board (MSPB or the Board) . Thus,
the AJ determined, the issue was not properly before her. The agency's
final order fully implemented the AJ's decision. Complainant makes no
relevant contentions on appeal, and the agency requests that we affirm
its final order.
After a careful review of the record, the Commission finds that grant of
summary judgment as to items one and three was appropriate. No genuine
dispute of material fact exists as to why the COP was denied, nor as
to why complainant was paid for 22.5 hours of annual leave upon his
disability retirement. Further, construing the evidence to be most
favorable to complainant, we note that complainant failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus toward complainant's protected classes.
Moreover, we concur with the AJ's determination to dismiss item two on
jurisdictional grounds.<3> The denial of a reasonable accommodation
was alleged as part of complainant's claim of constructive discharge.
As this issue, in conjunction with the constructive discharge issue, is
currently pending before the Board, we must dismiss the instant appeal.
We note that if complainant is not satisfied with the handling of his
accommodation issue after the MSPB issues a ruling on the constructive
discharge claim, complainant may appeal that ruling back to the
Commission. We direct the agency to the Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (EEO
MD-110), at 4-5, n.4.
Accordingly, the final order of the agency 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
August 19, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 The basis of reprisal was only raised as to the issue of annual leave.
3 The procedural history of complainant's claim of constructive discharge
is as follows: He filed the initial claim on December 16, 2000, the date
his disability retirement became effective. An MSPB AJ dismissed the
claim without a hearing, determining that the separation was voluntary and
the Board therefore lacked jurisdiction. The full Board affirmed this
summary dismissal. Complainant appealed the dismissal to the Court of
Appeals for the Federal Circuit. On July 16, 2002, the Federal Circuit
court vacated the summary dismissal, and remanded the case back to the
MSPB AJ for a hearing. At present, such hearing is pending.