01974610
05-04-2000
George Spreng, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
George Spreng v. Department of Veterans Affairs
01974610
May 4, 2000
George Spreng, )
Complainant, )
) Appeal No. 01974610
v. ) Agency No. 95-2025
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the final agency decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has established,
by preponderant evidence, that the agency discriminated against him on
the bases of reprisal (prior EEO activity) and disability (torn rotator
cuff of the right shoulder, ankle and knee problems) when he was (1)
placed on leave without pay (LWOP) and subsequently denied a light duty
reassignment as accommodation for a work-related injury; and (2) subjected
to a hostile work environment regarding various personnel actions.
BACKGROUND
Complainant, employed by the agency as a Boiler Plant Operator at the time
of the alleged discriminatory event, filed a formal complaint on July 21,
1995, in which he raised what has been identified as the issue presented.
The agency accepted the complaint for processing and, at the conclusion
of its investigation, issued a final decision of no discrimination.
It is from that decision that complainant appeals.
The evidence of record reveals that complainant suffered a work-related
injury on August 27, 1994. The injury caused damage to his right
shoulder, knee, and ankle. He continued to perform his regular job
duties until September 1, 1994. On September 21, he submitted an injury
report. The agency placed him on light duty as an elevator operator from
September 20, 1994, through December 18, 1994; and as a receptionist
from January 9, 1995, through March 7, 1995.
At the conclusion of the 45 day light duty period, complainant reported
to the Employee Health Center in order to be cleared to return to light
duty service. The Physician Assistant advised him that no further light
duty was available because he had been in light duty status for the
45 days required under the medical center's new policy regarding such
matters.<2> Complainant alleged that there were 30 employees on light
duty at that time who had been in light duty for over a year.
Rather than return to his regular duties or use of his accumulated 188
hours of annual leave, complainant chose to use his remaining 4.5 hours
of sick leave and then LWOP. He also elected to be placed on the Office
of Workers' Compensation (OWCP) roll where he was reimbursed 75% of his
regular wages tax free. Complainant believed that the Chief of Human
Resources (Chief) could have accommodated his physical condition by
assigning him to the vacant Instrument Mechanic, WG-3359-11, position.
The agency stated that this position was not vacant; it was occupied by
an employee on leave pending disability retirement. The agency further
stated that the Instrument Mechanic position required considerable
physical capabilities, i.e., an ability to climb ladders and change
sensors on the pipes for controls.
Complainant also alleged that after he filed the injury report on
September 21, 1994, his supervisor and the Chief made false and misleading
statements to the Worker's Compensation Claims Examiner to repudiate
his (complainant's) explanation as to how his injuries were caused.
The supervisor, armed with supporting evidence from several witnesses,
admitted that he disagreed with complainant's version of how the injuries
were caused.
On December 14, 1994, complainant received a memorandum from the Chief
of Engineering Services (CES) alleging misconduct and unacceptable
performance. Specifically, the memorandum concerned a medical note
that complainant had given to the Employee Health Physician (Physician)
regarding his doctor's visit on September 20, 1994. When the Physician
contacted complainant's doctor to verify complainant's condition,
complainant's doctor stated that he had not seen complainant. Complainant
stated that this was all a misunderstanding on his doctor's part and would
be straightened out. He also stated that he believed this incident was
just another avenue for the agency to justify their actions against him.
The CES stated that some of the doctor's notes submitted by complainant
were unsubstantiated and not signed by a physician.
Complainant alleged that beginning in April 1995, after he was placed on
LWOP, he began experiencing difficulties with the OWCP. Specifically,
he alleged that he received a letter from the OWCP in April 1995 which
stated that it would be unable to approve compensation at that time
because the agency's medical center had not confirmed that he was unable
to perform light duties under light duty/accommodation restrictions.
He believed that this personnel action was taken by the Chief. Regarding
this contention, an agency official admitted that there was a minor delay
while the OWCP was determining whether complainant qualified for workers'
compensation. That official, however, stated that OWCP's confusion
regarding complainant's status (i.e., whether he was on light duty or
completely unable to perform his duties) was the cause of the delay.
The agency stated further that complainant's failure to seek timely
medical support, along with his instructions not to release information
concerning his medical condition without his prior written consent,
further delayed his benefits.
Finally, complainant expressed concern as to why the medical center
applied the agency's new policy,<3> effective August, 1994, to his
condition when his injuries occurred on August 27, 1994. According to
him, the rescinded policy<4> would have offered him more job protection
for work-related injuries than the new policy. Again, complainant stated
that the Chief of Human Resources is to blame for this allegedly improper
personnel action.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Disability Discrimination
As a threshold matter, petitioner must establish that he is a "qualified
individual with a disability" within the meaning of the Rehabilitation
Act.<5> An "individual with disability" is a person who has, has a
record of, or is regarded as having a physical or mental impairment which
substantially limits one or more of that person's major life activities,
i.e., caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. See, 29 C.F.R. �
1630.2(j).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
In the present case, complainant alleged that the agency failed to
accommodate his disability when it placed him on LWOP and denied
him the opportunity to continue serving as a light duty employee.
While complainant did suffer injuries in a work-related accident, the
evidentiary record is void of information explaining how or to what extent
his injuries adversely affected any of his major life activities. There
is a letter in the record from complainant's doctor which indicates that
complainant was undergoing physical therapy to repair the rotator cuff
tear in his right shoulder. That letter, however, does not suggest that
complainant was substantially limited in performing a major life activity.
Therefore, we find insufficient evidence from which to conclude that
complainant's injuries substantially impaired one or more of his major
life activities so as to render him an "individual with a disability"
within the meaning of the Rehabilitation Act. Moreover, there is no
evidence indicating that agency officials regarded him as disabled,
nor does he have a record of a disability. Consequently, we find that
the protections accorded by the Rehabilitation Act are not applicable
in this case.
Reprisal
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show the existence of four elements:
(1) that he engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3) that
he was disadvantaged by an action of the agency contemporaneous with
or subsequent to such participation; and (4) that there was a causal
connection between the protected activity and the adverse employment
action. See, Hochstadt, Id., see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Generally, the Commission has held that nexus may be established if the
protected activity and the adverse action occurred within one year of
each other. Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996).
Information in the evidentiary record indicates that complainant filed
a formal EEO complaint on October 4, 1993. Therefore, complainant has
succeeded in proving the first element. He has not, however, proved
the second. The alleged discriminating official, in this case the
Chief, stated that he had no prior knowledge of complainant's prior EEO
activity. And there is no evidence in the record indicating that he did.
Because complainant did not prove the existence of all four elements,
we find that he failed to make out a prima facie case of reprisal.
Harassment/Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
Complainant alleged that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
To support his claim of hostile work environment, complainant pointed to
four things: (1) his supervisor's and the Chief's disagreement with him
about how his injuries were caused; (2) the memorandum he received from
the CES alleging misconduct and unacceptable performance regarding the
medical note he supplied to the agency; (3) the delay he experienced in
receiving his worker's compensation benefits; and (4) the application
of the agency's new light duty policy (effective August 1994) to his
injuries (received August 27, 1994). After thoroughly examining all
of the evidence in the file, the Commission concludes that the events
complained of were not harassing, intimidating, or humiliating in nature.
Instead, they were nothing more than legitimate personnel decisions.
For those reasons, we find that the agency's conduct was not sufficiently
severe to trigger a violation of Title VII or the Rehabilitation Act.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response thereto, and arguments and
evidence not specifically addressed in this decision, we hereby AFFIRM
the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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").
May 4, 2000
_____________________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the MSPB 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 See, Agency Policy Memorandum #05-4, effective August, 1994.
Medical center officials had determined that too many employees were
being retained on light duty status for too long. For budgetary reasons,
agency officials decided that these employees should resume their normal
duties when possible.
3 Id.
4 Agency Policy Memorandum #05-11.
5 The Rehabilitation Act was amended in 1992 to apply the standards of
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 the
Commission's website at www.eeoc.gov.