01A11837
07-12-2002
Harold Johnson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Harold Johnson v. Department of Defense
01A11837
July 12, 2002
.
Harold Johnson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A11837
Agency No. DFAS-INFE-97003
Hearing No. 110-99-8222X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that he was discriminated against in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., on the bases of race (Black), sex (male), age
(DOB: 12/15/42), disability (back, hip and groin injury), and reprisal
(prior EEO activity) when he was subjected to a hostile work environment,
disparate treatment and adverse actions.<1>
On appeal, complainant cites his own testimony which asserts that
the agency violated its leave policy and argues that the AJ failed to
consider such testimony. However, we find that the AJ did consider such
testimony but did not find it persuasive. Specifically, the AJ noted
in his decision that complainant failed to provide any documentary or
testimonial evidence which corroborated his assertion that the agency
leave policy mandated granting sick, rather than annual leave, while
his application for disability retirement was pending. Moreover, the
AJ noted that under the circumstances, it was reasonable for the agency
not to grant sick leave since the complainant had just been removed
from Office of Worker's Compensation (OWCP) benefits and was ordered to
return to work. In addition, the AJ noted that the denial of the OWCP
benefits was based upon medical evidence from the �referee� doctor that
complainant was capable of returning to work. The AJ also found that
while complainant did attach medical support for his request for sick
leave, the information and diagnosis were not newly made nor had they
been compelling to the OWCP. Accordingly, the AJ found that it was most
logical for the agency to assume that complainant would also be denied
disability retirement under the circumstances.
Complainant also asserts that the testimony showed that it was not common
practice for a supervisor to question a doctor's statement. However,
the record shows that complainant's supervisor did not question the
doctor's statement and actually approved the request initially. The AJ
concluded that it was an employee at headquarters who determined that
the sick leave request would not be approved based upon complainant's
medical and OWCP history. Accordingly, the AJ found no discriminatory
animus on the part of complainant's supervisor.
Lastly, complainant argues that contrary to the AJ's assertion, the
individuals who complainant identified as being treated differently
with respect to this sick leave issue did share the same supervisor.
Although, upon review of the hearing transcript, we find testimony that
indicates that at least two of the identified comparison employees
did work under the same supervisor, the AJ's ultimate finding that
the comparison employees were not similarly situated is supported
by substantial evidence. Specifically, the AJ noted and the record
supports the finding that none of the identified comparison employees
had a problem obtaining OWCP or other disability benefits. They all
successfully applied for and received disability benefits through the
Department of Labor or Office of Personnel Management. Accordingly, there
was no reason for the agency to assume that those individuals would be
denied such benefits. In addition, the AJ noted and the record supports
that at least two comparison individuals, in particular, received the
relevant sick leave very remote in time from complainant's leave request
(approximately 6 years prior).
Complainant disputes the AJ's finding that he was not an individual
with a disability. Although the AJ found that complainant was not a
disabled individual under the Rehabilitation Act, he also analyzed the
case as if complainant was an individual with a disability under the
Rehabilitation Act. Even assuming complainant was an individual with a
disability, the AJ concluded that he, nevertheless, failed to show that
the agency failed to reasonably accommodate his disability or that he
was treated differently because of his alleged disability. Accordingly,
we find that any argument by complainant that he was disabled, is not
relevant herein.<2>
Complainant also argues that the agency �libeled complainant in response
to the Congressional Inquiry.� Specifically, complainant asserts
that the agency falsely stated that complainant had been charged AWOL.
In addition, complainant asserts that the agency falsely stated that he
had solicited physicians to assist his case when all physicians involved
were selected by the agency. While the AJ found that the response to the
congressional inquiry contained some �factual distortions� (i.e., whether
complainant or the doctors wanted to perform back surgery and whether
complainant was going to be considered AWOL or LWOP), the AJ found that
these statements were not defamatory and they had a factual foundation.
In addition, the AJ noted that the letter came out of an office in a
location removed from where complainant or complainant's supervisor
was located. Given the factual foundation for the letter and the lack
of connection between the author of the letter and complainant or his
supervisor, the AJ concluded that the preponderance of the evidence
did not establish that the letter was written with discriminatory
or retaliatory animus. Complainant fails to indicate how the AJ's
assessment was not supported by substantial evidence.
Complainant also generally restates arguments previously made and facts
previously asserted. In addition, complainant argues that various
agency witnesses were evasive and should not have been found credible.
Upon review of the record, we disagree with complainant's assessment of
the agency witnesses' testimony.
Accordingly, as indicated above, 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 final agency order because the Administrative Judge's ultimate
finding, that unlawful employment discrimination was not proven by a
preponderance of the evidence, is supported by the record.
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
July 12, 2002
__________________
Date
1 The alleged adverse actions included (1) subjecting complainant to a
discriminatory leave policy; (2) lying to complainant's congressman in
order to ruin his career, character and good name; (3) denying complainant
proper medical care for an on-the-job injury; (4) the agency's attempt
to remove complainant from the agency; (5) acts of reprisal; (6) failure
to give complainant a performance appraisal; and (6) illegally changing
complainant's approved leave request.
2 Furthermore, for the purpose of this decision we assume, without
deciding, that complainant is an individual with a disability under the
Rehabilitation Act.