George Spreng, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 4, 2000
01974610 (E.E.O.C. May. 4, 2000)

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.