01996450
06-19-2002
Francis Jaskot, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Francis Jaskot v. Department of Veterans Affairs
01996450
June 19, 2002
.
Francis Jaskot,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996450
Agency No. 95-0451
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision (FAD) in the above-entitled
matter. For the reasons that follow, we AFFIRM the FAD.
During the period in question, complainant was employed with the agency as
a GS-11 Personnel Management Specialist. Complainant, believing that he
was a victim of discrimination, sought EEO counseling and, subsequently,
filed a complaint. He alleged that the agency discriminated against
him based on disability (carpel tunnel syndrome (CTS)) and reprisal
(prior Title VII-related activity) when his immediate supervisor
(S1): (1) interfered with his Office of Workers' Compensation Program
(OWCP) claim, (2) intentionally delayed processing his OWCP claim,
(3) contacted complainant's personal physician without complainant's
consent, (4) denied complainant's request for leave without pay (LWOP)
for his CTS surgery, (5) refused to inform complainant about the purpose
of a meeting she called, (6) attempted to intimidate complainant into
voluntarily postponing his CTS surgery, and (7) ordered complainant to
reschedule his CTS surgery.<1>
The agency completed an investigation for the complaint and
informed complainant of his right to elect a hearing before an EEOC
administrative judge (AJ) or an immediate FAD.<2> Complainant failed
to make an election. The agency issued a FAD, in which it used a
disparate treatment analysis for claims (1) through (7) and also a
reasonable accommodation analysis for claims (4), (6), and (7), finding
no discrimination. Specifically, the agency stated that complainant
established a prima facie case of retaliation for claims (1) and (3),
but failed to establish the same for claims (2) and (4) through (7).
In addition, the agency stated that complainant failed to establish
a prima facie case of discrimination based on disability or to show
that the agency failed to provide him with a reasonable accommodation.
Finally, the agency stated that complainant did not establish pretext
under a disparate treatment theory. This appeal followed.
For the purpose of analysis, we assume that complainant is a qualified
individual with a disability and that he established a prima facie
case of disability discrimination and retaliation. We, however, find
that complainant failed to show that the legitimate, nondiscriminatory
reasons articulated by the agency in response to claims (1), (2), (3),
and (5) were pretextual and we dismiss claims (4), (6), and (7).
For claims (1) through (3), S1 acknowledged that she contacted OWCP
and complainant's personal physician to determine whether six weeks was
an appropriate recuperation period for CTS surgery. S1 stated that she
questioned complainant's need to take six weeks of leave to recuperate
from his CTS surgery because a third party<3> returned to work within
two weeks of having the same surgery. We note that an OWCP handbook
included in the record stated that a supervisor should investigate
the circumstances of an OWCP claim if he/she questions the validity
of it. In addition, two OWCP representatives stated in affidavits
that S1 was acting both as complainant's supervisor and as a Human
Resources Injury Compensation representative, and as such it was not
unusual for her to try to get clarification on complainant's claim.
Finally, S1's contact with complainant's personal physician appears
job-related and consistent with business necessity. See Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (ADA), No. 915.002
(July 27, 2000). Complainant requested a substantial amount of leave
without pay, which constituted a request for reasonable accommodation,
and S1 made a disability-related inquiry because complainant's need
for the requested accommodation was not obvious.<4> Id. S1 sought to
verify complainant's need for the accommodation. As a practical matter,
however, an agency should obtain a limited release from an employee prior
to making a disability-related inquiry to an employee's physician because
typically a physician will not release medical information without one.
However, failure of an agency to obtain a release prior to making an
otherwise permissible disability-related inquiry does not violate the
Rehabilitation Act. Id. at n.57.
In reference to claim (2), the record reveals that S1 took an additional
eight calendar days to submit complainant's OWCP claim. S1 stated
that she did not intend to delay complainant's claim. In addition,
the OWCP representatives stated that, during the period in question,
such a delay would not have been considered excessive.
With respect to claims (4), (6) and (7), we agree with the agency
that the claims are essentially one claim. Moreover, we note that
the Commission previously addressed this claim in Jaskot v. Dep't of
Veterans Affairs, EEOC Appeal No. 01962880 (August 12, 1998). We note
further that complainant did not file a request for reconsideration in
response to the determination rendered in EEOC Appeal No. 01962880.
Therefore, we dismiss the claim that is now set forth in claims (4),
(6), and (7) because it states the same matter that has previously been
decided by the Commission. 29 C.F.R. � 1614.107(a)(1).
Finally, in reference to claim (5), S1 stated that she does not recall
refusing to inform complainant about the subject of the meeting she
called. Complainant failed to show otherwise or that S1's action as
alleged was based on discriminatory factors.
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 decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
June 19, 2002
__________________
Date
1In its FAD, the agency stated that claims (4), (6), and (7) are three
stages of one action.
2We note that the complaint at issue has an extensive procedural
background that we will not outline in this decision.
3We note that the third party S1 referred to is the spouse of an agency
employee.
4Complainant requested leave for his past surgery as well as leave for the
upcoming CTS surgery on his other hand. S1 attempted to determine whether
complainant requested an appropriate amount of leave in both instances.