01997080
08-08-2002
James F. Billingsley v. Department of Veterans Affairs 01997080 08-08-02 . James F. Billingsley, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
James F. Billingsley v. Department of Veterans Affairs
01997080
08-08-02
.
James F. Billingsley,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997080
Agency Nos. 95-0459 & 95-0817
Hearing Nos. 360-98-8540X & 360-98-8541X
DECISION
On August 27, 1999, James F. Billingsley (hereinafter referred to as
complainant) initiated a timely appeal to the Equal Employment Opportunity
Commission (Commission) with regard to his complaint of discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq; and � 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted by
this Commission in accordance with 29 C.F.R. � 1614.405. Based upon
a review of the record, and for the reasons stated herein, it is the
decision of the Commission to AFFIRM the final agency action.
ISSUES PRESENTED
The issues on appeal are whether complainant proved, by a preponderance
of the evidence, that he was discriminated against: 1. on the bases
of his age (over 49), and disability (loss of use of his left arm and
major depressive disorder) when his shift was changed in April 1994,
he was denied reassignment to a position compatible with his education
and training, and he was harassed by his co-workers, and 2. in reprisal
for prior EEO activity under the ADEA and Rehabilitation Act when he
was issued a letter of counseling in December 1994.
BACKGROUND
Complainant filed formal EEO complaints in May 1994 and January 1995,
raising the above-referenced claims of discrimination. The agency
accepted complainant's complaints for processing, and conducted
investigations with regard to the matters raised therein. Following an
administrative hearing, the Administrative Judge (AJ) issued a decision
finding that complainant was not discriminated against with regard to
the schedule change and letter of counseling. Specifically, the AJ
stated that complainant failed to show that the stated reasons for
the actions, that is, the workload in the section and complainant's
violation of an agency policy concerning knives at the facility, were
a pretext for discrimination. Further, the AJ noted that while there
was some evidence that co-workers belittled complainant, complainant
would not provide the names of the individuals to his supervisor,
and the supervisor held a meeting with all employees to correct any
verbal abuse. Nevertheless, the AJ concluded that the agency failed
to provide complainant with reasonable accommodation. The agency,
in a decision dated August 12, 1999, concurred with the AJ's decision
regarding the schedule change, letter of counseling, and harassment.
With regard to the issue of disability, the agency concurred with the AJ's
finding that complainant was an individual with a disability based upon
his arm injury. The agency, however, disagreed with the AJ's finding
that complainant's mental condition substantially limited a major life
activity. Further, the agency stated that it provided complainant with
reasonable accommodation. It is from this decision that complainant
now appeals.
According to the record, complainant, a Mechanic, sustained an injury
to his left arm while on the job. Complainant's treating physician
(Dr. P) indicated in September 1990, that complainant was unable to
resume his regular job due to a permanent disability of his left hand.
It appears from the workers' compensation forms that complainant
was unable to lift or perform fine manipulation. Dr. P noted on the
form that complainant was able to lift "0 pounds." Complainant was
subsequently offered a Dispatcher position.<1> Complainant expressed
concerns that his educational ability was insufficient for the position,
and requested that he receive training if needed. Complainant began
working as a Dispatcher in January 1991, and received on the job training
from a co-worker for a period of approximately six months beginning in
February 1991. Testimony of various witnesses shows that the individual
who trained complainant was patient, and thorough, and was considered to
be one of the best employees in the division. Complainant's supervisor
(S) stated that complainant had no problems with performance, but
continued to express concerns about his reading and writing abilities.
S then located a literacy program, which complainant attended. In April
1994, complainant's schedule was changed from 7:00 am until 3:30 pm to
8:00 am until 4:30 pm. According to the record, complainant received
"fully successful" performance appraisals during the time he worked
as a Dispatcher. Complainant did receive a letter of counseling in
December 1994, for failing to follow agency policy by carrying a knife
at the facility. Complainant ultimately accepted a buyout, and retired
in March 1995.
Complainant asserted that he was not qualified for the Dispatcher position
due to his lack of education. Complainant acknowledged completing at
least the tenth grade, and obtaining a General Equivalency Diploma.
Nevertheless, he stated that he had difficulty completing the paperwork
for the position, and dealing with the daily changes. Further,
complainant stated that his co-workers harassed him by referring to
him as "dumb," and would not follow his instructions. Complainant
acknowledged, however, that when he reported an incident with a specific
co-worker, S met with the individual, and he had no further incidents.
Complainant also stated that, after a meeting S held with all employees,
he experienced no further incidents of name calling. Complainant stated
that the agency offered him a Driver position, but that Dr. P told him
he was too nervous to perform such duties.<2> Complainant indicated
that the job caused him a great deal of stress, because of his lack
of education and the fact that he had no authority over the Drivers.
Finally, complainant stated that he had carried the knife at work for
many years, and used it as a tool in his former position.
The record shows that complainant was given a literacy test by
the agency's Employee Assistance Counselor, although it is unclear
when this occurred. According to the Counselor, the test revealed
that complainant's reading ability was at the fourth grade level.
The Counselor suggested that complainant complete a reading course.
The record contains a letter from the literacy program, showing that
complainant had progressed to the seventh grade level by May 1992.
S stated that he believed complainant had the basic skills necessary
to perform the Dispatcher duties. He stated that complainant received
extensive on the job training, as well as remedial help with reading.
S noted that he had no problems with complainant's performance.
Testimony of various management officials and co-workers shows that
the Dispatcher position involved some paperwork, primarily log entries
and basic forms, and that the forms were simplified for complainant.
In addition, Mechanics were required to fill out work orders, and receive
written instructions.
S stated that he changed complainant's schedule because of the need for
a Dispatcher during the late afternoon hours. S noted that, previously,
co-workers were able to assume those duties, but that the section had
recently lost a few employees. With regard to the knife incident,
S stated that he asked complainant to take the item to his vehicle,
but complainant refused to do so. It is noted that there is evidence
in the record concerning a recent incident involving an employee who
threatened a co-worker with a gun.
The record also contains notes from a family physician (Dr. I) for
the period from January 1992 through July 1992. Dr. I indicated that
complainant had "work stress syndrome," stating that complainant reported
having difficulty with the paperwork associated with his Dispatcher
position. In March 1992, Dr. I reported that complainant's condition
had improved and he was doing relatively well at work. In July 1992,
however, Dr. I indicated that he had recommended complainant be removed
from the Dispatcher position and "other duties which exacerbate his
stress related medical condition." Dr. I noted that, at that time, the
recommendation was not permanent. Dr. I issued a report dated May 27,
1993, again recommending a leave of absence. Dr. I's report includes
information concerning problems complainant reported having with his
position, including paperwork and the failure to obtain a transfer.
Dr. I noted that complainant experienced various physical symptoms
as a result of stress, such as gastritis, irritable bowel syndrome,
headaches, a lack of concentration, anxiety, and depression. Finally,
complainant underwent a psychiatric consultation in September 1993.
The physician (Dr. P2) stated that complainant was severely depressed
as a result of his injury, but indicated that complainant demonstrated
a moderate ability to concentrate, a normal flow of thought, average
intellectual functioning, and sufficient vocabulary.<3>
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
A careful review of the record reveals that the AJ correctly determined
that complainant was not subjected to discrimination with regard to
the schedule change and letter of counseling. Specifically, while the
AJ found that complainant established a prima facie case, she stated
that the agency articulated legitimate, nondiscriminatory reasons for
those actions, namely, the heavy volume of vehicle activity in the late
afternoon, and the agency's zero tolerance policy concerning weapons
at the facility. Further, complainant failed to show that the stated
reasons were a pretext for discrimination.
The Commission further concurs with the AJ's findings concerning the
issue of harassment. Complainant asserted that he was subjected to
harassment based upon his age and disability. It is initially noted
that, to the extent complainant is alleging disability-based harassment,
it does not appear that any of the conduct complained of was directed
toward complainant because of his disability. Further, complainant
acknowledged that on the one occasion that he reported harassment by
a specific co-worker, S met with the individual and the comments in
question ceased. The record also shows that S met with all employees in
an attempt to address workplace issues, including derogatory language.
Complainant stated that, after that meeting, he was no longer the subject
of such comments. Complainant's union representative confirmed that he
was able to work the issue out after meeting with S.
With regard to the claim of disability discrimination, it is noted
that, under the Rehabilitation Act, a disabled individual is one who:
1. has an impairment which substantially limits one or more major life
activities; 2. has a record of such an impairment; or 3. is regarded
as having such an impairment. 29 C.F.R. �1630.2(g).<4> Major life
activities include caring for one's self, performing manual tasks,
walking, seeing, breathing, learning, and working. 29 C.F.R. �1630.2(i).
The Commission agrees with the AJ's finding that complainant was
an individual with a disability by virtue of the residuals from his
arm injury. The workers' compensation forms show that complainant was
unable to lift or perform fine manipulation. Thus, he was substantially
limited with regard to the major life activity of lifting.
The Commission further finds that the agency met its responsibility to
provide complainant with reasonable accommodation when it reassigned
him to the Dispatcher position. While complainant asserted that he was
not qualified for the position due to his reading and writing abilities,
the record shows that complainant received "fully successful" performance
appraisal ratings, and S stated he had no problems with complainant's
performance. Complainant was also provided with extensive on the job
training and a literacy course. Further, the record contains testimony
from both management officials and co-workers regarding the relatively
simple nature of the Dispatcher position, and complainant's ability
to read various magazines and books during breaks. Although the AJ
stated that complainant was making numerous mistakes within a few days
of assuming the position, and that his supervisors were displeased with
his work, the record does not support such a finding. While the AJ
credited complainant's assertion that he would have been able to resume
his Mechanic duties if given more time to heal, the record shows that
the reassignment occurred approximately 18 months after his injury, and
Dr. P had concluded that he was unable to perform those duties. Further,
complainant testified that his hand did not heal as it should have after
surgery, and would open automatically at times when he picked up an item.
The AJ also found that the agency failed to show that it would be an undue
hardship to reassign complainant to one of the positions he identified,
including a position ordering parts, and a Trades Helper position.
The record, however, shows that there were no such positions at the
agency. It is noted that the Rehabilitation Act does not require that
the agency create a new position for a disabled individual. See Mitchell
v. Department of Defense, EEOC Petition No. 03930164 (January 21, 1994);
Owens v. United States Postal Service, EEOC Petition No. 03930129
(December 17, 1993). Nevertheless, the Chief of Engineering Service
stated that the agency was in the process of creating a Sprinkler Mechanic
position for complainant, but that he chose to retire. Finally, the
record shows that the agency offered to reassign complainant to a Motor
Vehicle Operator position, but that complainant declined the offer.<5>
While complainant stated that his doctor advised him not to accept the
position, the record contains no corroborating evidence.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to AFFIRM the final agency decision.
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:
_____________________________
Frances M. Hart, Executive Officer
Executive Secretariat
_______08-08-02______________________
Date
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 complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1Although complainant indicated that he never accepted the position,
the record includes a letter signed by complainant stating that he did so.
2Although complainant, at the hearing, mentioned that Dr. P advised him
not to accept the Driver position in a letter, the record contains no
such document. Further, in his formal complaint, complainant indicated
that he did not like the schedule for that position.
3While the AJ stated that complainant experienced depression beginning
in January 1991, the medical evidence of record shows that he did not
receive such a diagnosis until 1993, and was not treated for stress
until November 1991.
4The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
5It is unclear from the record when specifically the offer was made;
however, it appears from the testimony that complainant was offered the
position in late 1992 or 1993.