01982933
04-06-2000
David P. Mullins, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
David P. Mullins v. Department of Veterans Affairs
01982933
April 6, 2000
David P. Mullins, )
Complainant, )
) Appeal No. 01982933
v. ) Agency No. 97-0435
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of physical disability (knee and back conditions) in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et
seq.<1> Complainant alleges the agency discriminated against him by:
(1) denying him specific duties and hours; (2) failing to convert him to
a Registered Nurse (RN) position; and (3) failing to provide him with a
completed performance appraisal. Complainant also alleges harassment.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<2> For the following reasons,
the Commission affirms the FAD as clarified herein.
The record reveals that during the relevant time, complainant was employed
as a Licensed Practical Nurse (LPN), at the agency's Medical Center in
Cincinnati, Ohio. Complainant was a recent graduate who had no prior
nursing experience when he began working in 1992. He suffered an on the
job injury to his knee in July 1993 and was off duty until January 1994.
In July 1994, complainant suffered an on the job injury to his back and
was not cleared to return to duty until November 1995, at which point the
agency referred him to a rehabilitation center to assist the healing of
his back. While in rehabilitation, he was diagnosed with a hernia and
operated on in December 1995. He returned to duty in February 1996.
Complainant filed a formal EEO complaint on December 10, 1996. At the
conclusion of the investigation, complainant requested that the agency
issue a final decision.
The FAD determined that complainant relied on a disparate treatment theory
of discrimination in violation of the Rehabilitation Act since there
was no evidence in the record suggesting that he requested or wanted
a reasonable accommodation. The FAD found that complainant was not an
individual with a disability within the meaning of the Rehabilitation Act
because his medical conditions were only temporary and because he did not
purport to have ongoing limitations or impairments which substantially
limited a major life activity. Even assuming arguendo that complainant
did establish a prima facie case of disability discrimination, the FAD
found that complainant failed to present evidence that the agency's
legitimate and nondiscriminatory reasons for its actions were a pretext
for unlawful discrimination. The FAD did not address the claim of
harassment.
On appeal, complainant reiterates his contention that the agency
regarded him as disabled, and, contrary to statements he made during the
investigation, that he does have limitations. Complainant also states
that he had surgery again in 1997 for an on the job knee injury and that
he suffers from a sleep disorder. The agency stands on its decision.
Without determining whether complainant is a qualified individual with a
disability within the meaning of the Rehabilitation Act, the Commission
finds that the agency articulated legitimate, nondiscriminatory reasons
for its actions. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Prewitt v. United States Postal Service, 662 F.2d 292 (5th
Cir. 1981). The evidence establishes that as a result of complainant's
frequent on the job injuries, management did not have the opportunity
to consistently observe his work performance. As a result, management
refused to convert him to an RN position as quickly as they did similarly
situated individuals, who were not absent for extended periods and who
had satisfied management of their competency. The agency's general
practice, because complainant was not yet an RN and was receiving
workers' compensation, was to assign him to shifts and duties which
enabled a nurse preceptor to observe his work performance.<3> Finally,
complainant only appears to have received a blank performance appraisal
for rating periods where he was off duty because of an on the job injury.
Complainant proffered no evidence that the agency's explanations for
its actions were a pretext. Accordingly, we decline to find that the
agency was motivated by discriminatory animus towards complainant's
disability, a conclusion which precludes a prima facie case of harassment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Therefore,
after a careful review of the record, we affirm the FAD as clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
3 In January 1997, when management was satisfied that complainant could
handle the responsibilities of an RN, he was converted.