01996702
05-08-2002
Fereidoon Kharabi, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kharabi, Fereidoon v. Department of Veterans Affairs
01996702
May 8, 2002
.
Fereidoon Kharabi,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996702
Agency No. 97-1147
Hearing No. 340-98-3051X
DECISION
Complainant timely initiated an appeal from a final agency decision
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 final agency
decision is AFFIRMED.
The issue presented herein is whether complainant has established by
preponderant evidence that he was discriminated against on the basis
of disability (lumbar radiculopathy, leg atrophy) when, from January to
March, 1997, he was denied a reasonable accommodation, forced to undergo
two medical examinations, and subjected to harassment.
The record reveals that in June 1986, complainant, employed as a Staff
Psychiatrist at the time of the alleged discriminatory events, injured
his back when he fell out of chair while in the course of performing his
duties for the agency. As a result of the back injury, complainant has
pain in his lower back, and pain, tingling, numbness and muscle spasms
in his left leg. The pain that complainant experiences is worse in the
afternoon. Consequently, some time after the injury<1> to October 1995,
complainant was allowed to perform compensation and pension examinations
for veterans at the VA hospital in which he worked. He then dictated the
reports concerning those examinations from home for a total of eight
hours per day. In October 1995, complainant's second-line supervisor
(the supervisory Staff Psychiatrist, or SSP), after taking over the
supervisory duties of the Emergency Room (ER), informed complainant's
first-line supervisor, Dr. F., that complainant could no longer dictate
his examinations reports from home. This decision was made, in part,
because of the increasing workload in the Emergency Room and staff
shortages. Consequently, complainant began to work at the agency facility
full-time, which caused him to use an increased amount of sick leave.
In February 1996, complainant contacted his personal physician,
Dr. G., because the pain in his back had worsened. On February 12,
1996, Dr. G. wrote a letter to the agency indicating that complainant
could only work in the morning for not more than five hours per day.
The agency honored Dr. G.'s letter and allowed complainant to work the
modified work schedule. That presented a problem for the ER because most
of its patients were seen in the afternoon, so that is when complainant's
services were needed most. According to complainant, after he began
working the modified work schedule, his supervisors harassed him to go
back to work full time.
In December 1996, the SSP asked an agency employee to schedule an
examination for complainant with an independent medical doctor so that
the agency could determine why complainant could only work five hours
per day, and why those hours had to be in the morning. The examination
took place in January 8, 1997. In a report issued on January 10, 1997,
the examiner opined that complainant could work eight hours per day.
Because the examiner was a general practitioner, not a neurologist like
complainant's doctor, he advised agency officials that the results of his
examination should be certified by complainant's doctor. Rather than
send complainant to his own doctor, the agency sent complainant to
another neurologist on March 6, 1997. The neurologist found that there
was not sufficient evidence that complainant could not work a full eight
hour workday so long as he had a lunch break and breaks �at other times
as well.�
During this period, complainant also requested to be reassigned to
Outpatient Services (OS). Complainant believed that he could better serve
the agency in OS because, unlike the ER, many of the OS patients were seen
in the morning. The Chief of the Psychiatry Department (Chief) denied
this request because he believed that complainant's needs could be met
better in ER where the agency could have someone cover for complainant,
as opposed to OS where there were regular appointments that may not
be kept because the doctor was not there. Notwithstanding the agency's
concern about complainant's modified work schedule and the findings of
the general practitioner and the neurologist, there is no evidence in the
file that complainant was required to work more than five hours per day.
The agency also initiated an investigation, conducted by the Office of
Inspector General (OIG), against complainant for possible unethical
contact. The investigation stemmed from the belief that complainant
was operating a private practice during his work hours, which would
explain why he could not work in the afternoon. The impetus for the
investigation was a telephone call placed to complainant by an Employee
Relations Specialist (ERS). In a letter dated February 9, 1999, the ERS
explained that she called telephone information to obtain complainant's
telephone number. When the ERS called the number obtained, complainant's
wife answered the phone and allegedly became quite upset that someone
from complainant's job had called that number. The ERS further explained
that complainant's immediate supervisor, Dr. F.'s successor, told her
that complainant's wife had the number to complainant's private practice
forwarded to complainant's wife's job in order to cover up the fact
that he operated a private practice. The OIG's investigation cleared
complainant of any wrongdoing.
Finally, the agency also denied complainant's request for educational
leave in 1996. Psychiatrists at the agency commonly requested
educational leave to attend job-related seminars and other training.<2>
Complainant made such a request in 1996. Complainant stated he was
told by the Chief, the person who denied his request, that he could
not take educational leave because he only worked four hours per week.
See Complainant's Affidavit, p. 4. Complainant's immediate supervisor
stated that he thought complainant's request was denied partially
because he initially filled out the request form improperly, and
when he corrected it at the last minute, it was denied by the Chief.
See Immediate Supervisor's Affidavit, p. 7. The immediate supervisor
further stated that complainant's educational leave request was granted
in 1997. Id. The Chief stated that requests for educational leave
were evaluated on a case-by-case basis, and that he did not know why
complainant's request was denied. See Chief's Affidavit, p. 9.
Believing he was the victim of discrimination, complainant filed a formal
complaint in which he alleged that he was discriminated against on the
basis of disability when: (1) he was required by the agency to undergo
two medical examinations; subjected to harassment<3> when he was denied
educational leave, his supervisors spread rumors which resulted in an
OIG investigation, and pressured him about returning to work full time;
and (3) denied a reasonable accommodation. The complainant was accepted
for investigation. At the conclusion of the investigation, complainant
requested a hearing before an EEOC AJ. Consequently, his case was
forwarded to the appropriate EEOC District Office and assigned to an AJ.
The AJ issued a decision without a hearing finding no discrimination.
Specifically, the AJ found that complainant was an individual with a
disability covered by the Rehabilitation Act. The AJ further found that
the two medical examinations were not violative of the Rehabilitation Act
because they were job-related and consistent with business necessity,<4>
complainant was not subjected to harassment because the matters of which
he complained were not sufficiently severe or pervasive to constitute
harassment, and the agency provided complainant with a reasonable
accommodation that enabled him to perform the essential functions of
his job. The agency's final decision implemented the AJ's decision.
This appeal followed.
On appeal, complainant contends that the AJ should not have decided
the case without a hearing. Specifically, complainant contends that
the AJ's decision incorrectly concluded that: (1) he had been employed
in the Psychiatric Evaluation and Admissions section of the hospital
for the whole of his employment with the agency; (2) there were no
positions in the hospital into which he could be reassigned; and (3)
the doctors who performed the two medical examinations were independent
evaluators. The agency requests that we affirm its implementation of
the AJ's decision.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.<5>
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
May 8, 2002
__________________
Date
1The record does not specify an exact date or time period.
2According to complainant, psychiatrists are required to have educational
credits in order to maintain their licenses and continue in their
positions, and therefore, such educational requests were routinely
granted.
3Complainant also alleged that the two medical examinations were part
of a the general pattern of harassment to which he was subjected.
4In order to challenge a fitness for duty examination as violative of
the Rehabilitation Act, one need not be an individual with a disability.
See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under The American with Disabilities Act,
No. 915.002, p. 3 (July 26, 2000).
5In rendering this decision, we assume, without finding, that complainant
is an individual with a disability covered by the Rehabilitation Act.