01a44280_r
08-09-2006
David J. Barajas, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
David J. Barajas,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44280
Agency No. 200N-0612-2003101828
DECISION
Complainant appeals to the Commission from the agency's decision dated
May 5, 2004, finding no discrimination. In his complaint, dated April 4,
2003, complainant, a Police Officer, GS-6, alleged discrimination based
on race (Hispanic), national origin (Mexican), and disability when:
In February and March 2003, management did not approve his psychological
evaluations in an effort to �force him out of employment;�
Management repeatedly required him to take the psychological evaluations
in February and March 2003;
In February 2003, management denied him the firearms training;
In February 2003, management provided Dr. A private medical information
detrimental to the approval of his psychological evaluation;
Management shared with employees his private medical information in
February 2003;
He was not compensated for performing supervisory duties from 1999,
to the present; and
He was continuously denied reassignment to his former work location.
The agency, in its decision, concluded that it asserted legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged actions.
The record indicates that at the relevant time period, complainant was
a Police Officer at the agency's Northern California Healthcare Systems
(NCHCS). The Chief of the agency's police at NCHCS, also complainant's
second line supervisor, stated that their facility, along with some other
NCHCS facilities, were slated to become armed sites. As a result of this,
all the agency police departments were to be armed by October 1, 2003.
Prior to that date, all Police Officers had to go through a psychological
assessment to see if they were capable of carrying a weapon. The Chief
stated that he and other committee members decided to go outside for the
psychological evaluations because none of the in-house doctors felt that
they had the expertise to determine whether someone was psychologically
competent to carry a firearm. The members of the committee agreed
on Dr. A because he had done 17,000 law enforcement psychological
examinations for the ability to carry a firearm. The committee provided
Dr. A with guidance from the agency's Central Office and what the Police
Officers job entailed, i.e., their making contact with the public,
investigating, doing vehicle patrols, arresting people, and dealing with
violent individuals.
On February 3, 2003, Dr. A interviewed complainant and found that he could
not establish that complainant was competent to carry a weapon because
he was deceptive and not truthful. On March 26, 2003, Dr. A interviewed
complainant again and made the same findings. Specifically, in his letter
dated March 26, 2003, which was addressed to the agency Program Manager,
Dr. A stated that during the second interview, complainant would not
answer the questions that he asked complainant in a complete and honest
manner, and the interview portion was cut short; thus, complainant
remained �Not Certified.�
Complainant claimed that the Occupational Health Program Manager
(OHPM) improperly released his veteran patient records to Dr. A after
his first interview, and this caused his non-certification to carry
a weapon. The Health Information Manager and privacy FOIA Officer,
who was responsible for release of information from the veteran medical
records, indicated that the OHPM admitted to her that she mistakenly
released complainant's veteran patient records to Dr. A because she had
not looked closely enough to differentiate the records.<1> Complainant
proffers no evidence that the OHPM released his veteran patient records
to Dr. A in order to discriminate against him. Furthermore, the release
of non-employee medical records (records generated because complainant
is a veteran, not because he is an employee) is not within the scope of
the Commission's jurisdiction.
Complainant also claimed that Dr. A did not certify him because he could
not recall and recite the entire list of medications that he was taking
and that appeared on his veteran patient record. The record contains a
copy of transcribed conversation between Dr. A and complainant during
the March 26, 2003 interview. It appears that their conversation was
unpleasant and hostile toward each other and when Dr. A asked complainant
what medications does he take currently, prescribed or stockpiling,
complainant answered that he takes the only one identified medicine
everyday.<2> Despite complainant's contentions, there is no evidence
in the record to show that Dr. A ever asked him the entire list of his
medications. Furthermore, despite complainant's contentions, he never
told Dr. A that he could not remember all or any of the medications
he was taking. In fact, complainant clearly and categorically denied
taking any medicine other than the one medicine. The Commission finds
that the record indicates that Dr. A non-discriminatorily determined
that complainant was not being truthful and that this fact disqualified
complainant from being certified by Dr. A to carry a weapon.
The Chief stated that since complainant failed his psychological
evaluation, he was not permitted to attend firearm qualification during
the week of February 18, 2003, and he was, subsequently, reassigned in a
job under the Chief Medical Officer at McClellan. The record indicates
that another employee also failed the two psychological evaluations.
That employee was also moved out of the Police Patrol Division and
assigned to other duties, i.e., monitoring the telephones and radios,
until a reassignment outside the police force could be found. The Chief,
undisputed by complainant, indicated that no Police Officer was permitted
to handle a weapon until after one passed the psychological assessment.
The Chief also stated, and complainant agreed, that prior to this
complaint, complainant's disability did not affect his ability to perform
any essential functions of his position. The Chief also indicated that
he did not know nor was he informed of complainant's mental disability.
Furthermore, complainant never asked for an accommodation because of
his back problems. Complainant's first line supervisor, a Supervisory
Police Officer, agreed with the Chief's statements and also indicated
that complainant did not complain of other employees knowing his
medical information until four or five months after his reassignment.
The supervisor also stated that although he knew of complainant's back
injury, he had no medical information on complainant and he never tried
to access complainant's medical information. There is no persuasive
evidence showing that complainant's supervisor impermissibly divulged
medical information about complainant.
With regard to complainant's performing supervisory duties, the Chief
stated that complainant initially asked for those duties, i.e., reviewing
the police reports, as his collateral duty, to which he was granted.
The Chief also stated that all Police Officers, including complainant,
were assigned various collateral duties, which were rotated yearly.
The Chief indicated that he did not know that complainant was still doing
these duties until he filed this instant complaint. He also indicated
that after he was notified of this from complainant, he informed his
employees, in writing, that these collateral duties would be rotated
yearly so there would be no further �slip-ups.� The record indicates
that on July 27, 2003, complainant accepted his reassignment from his
Police Officer position at Mather, CA, to the position of Program Support
Assistant at McClellan, CA.
Upon review, the Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents. The Commission
also finds that complainant failed to show that the agency's reasons
were pretext for discrimination. After a review of the record, the
Commission finds that complainant failed to show, by a preponderance of
the evidence, that he was discriminated against on the bases of race or
national origin or disability.
Accordingly, the agency's decision finding no discrimination is
AFFIRMED.<3>
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 9, 2006
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission notes that an employer is entitled to ask an employee
for reasonable medical documentation about his/her disability and
its functional limitations if it is job-related and consistent with
business necessity for an employer. See EEOC Enforcement Guidance
on Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act (ADA), No. 915.002, Question 2
(July 27, 2000).
2The Commission notes that an employer may ask an employee what
prescription medications he/she is taking if it is job-related and
consistent with business necessity, i.e., an employer must be able to
demonstrate that an employee's inability or impaired ability to perform
essential functions will result a direct threat. See id. at question 8.
3The Commission does not address in this decision whether complainant
is a qualified individual with a disability.