01a44567
11-17-2005
James R. Johnston Sr., Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
James R. Johnston Sr. v. Department of Veterans Affairs
01A44567
November 17, 2005
.
James R. Johnston Sr.,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44567
Agency No. 200L-0622-2002102102
DECISION
Complainant appeals to the Commission from the agency's June 3, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of sex (male), age (d.o.b. 10/4/54), disability (tennitus,
hearing loss), and reprisal when: (1) on February 26, 2002, he was asked
to do additional duties, which were not part of his job description;
(2) on March 7, 2002, he was refused sick leave; and (3) on March 8,
2002, he was refused a reasonable accommodation. The agency found that
complainant failed to establish a prima facie case of sex, age, reprisal
or disability. The agency further found that assuming complainant
established a prima facie case, the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
adequately rebut.
The record indicates that during the relevant time in question,
complainant worked as a Cytology Technician in the Pathology Laboratory in
the Tennessee Valley Health Care System in Murfreesboro, TN. During the
relevant time, the VA Medical Center in Murfreesboro was being merged
with the Nashville Medical Center. The laboratory where complainant
worked was phasing out some of the testing and consolidating services
with the other institution. Complainant suffers from tennitus (ringing
of the ears), which is aggravated by stress. Complainant takes Valium
for his medical condition. When complainant learned that his co-worker
was planning to retire, complainant became stressed and panicked at
the thought of working alone with no one to help him. Simultaneously,
complainant's supervisor informed him that his position may be dissolved
through an impending re-organization. The supervisor suggested
that complainant be trained in another area in order to retain a job.
Complainant said the two events together were too much stress to handle.
Complainant declined the training.
Complainant states he was diagnosed with situational stress on February
26, 2002. According to complainant, he was advised to take medical leave
for a period of 30 days. On March 1, 2002, complainant contends that,
while attending an awards ceremony, he presented documentation to his
supervisor regarding the need to take leave beginning February 27, 2002.
He received a response on March 6, 2002, from his supervisor denying
leave. The March 6, 2002 letter advised complainant that his medical
documentation was insufficient for extended leave. Further, the letter
indicated that since complainant was well enough to attend the ceremony,
he appeared also well enough to work. The letter also informed complainant
that if he did not return to work, he would be placed on Absence Without
Leave (AWOL). Complainant did not return to work. Instead, complainant
went to another doctor and submitted medical documentation requesting
six months of Leave Without Pay (LWOP) on March 27, 2002, to expire on
September 26, 2002. Complainant has not been to work since March of 2002.
Further, complainant testified that he was in LWOP status for 7 months
and was later granted sick leave because of his medical condition.
Disability Accommodation
Assuming complainant is an individual with a disability under
the Rehabilitation Act, we find he failed to show he was denied a
reasonable accommodation. Complainant argues he was denied a reasonable
accommodation when he was asked to work outside his position description.
Specifically, complainant requested to �work within [his] series, [his
position description], . . . the job that [he] had been doing for the
last 20 years, and that any additional training at this point was [not]
acceptable.� The agency argues that complainant was periodically asked to
train in other areas to avoid losing his job through a re-organization.
There is no indication that complainant participated in any training.
Further, to the extent that complainant feels he was working outside his
position description, complainant has failed to show how such work was
in violation of his medical restrictions. Moreover, complainant has
not shown a nexus between his purported disability and his requested
accommodation of doing the same work he has been doing for the last 20
years without training.
With regard to complainant's request for leave, we find the agency has
provided complainant with the accommodation complainant requested.
Complainant requested 6 months LWOP. Although the request was not
granted immediately, pending more documentation, the record indicates that
complainant, nonetheless, took the leave and was charged LWOP for about
7 months. Further, complainant was later granted his request for sick
leave following the 7 months LWOP. We find that complainant has failed
to show that he was denied a reasonable accommodation. The reasonable
accommodation he requested, LWOP, was granted. The agency's request
for documentation to justify the LWOP was reasonable. We make these
determinations without making a finding as to whether complainant is an
individual with a disability under the Rehabilitation Act.
Disparate Treatment
Complainant alleges he was discriminated against when he was asked
to train in another area. The agency argues that the laboratory was
experiencing a decline in work. The office was facing re-organization.
In an effort to keep complainant at that location, his supervisor asked
that he be trained in another area of work. The supervisor suggested
complainant be trained in the laboratory which processes incoming
specimens and sends them out for additional analysis. The supervisor
indicated that the department was chronically shorthanded and that
he felt complainant could have a secure job there. Additionally, the
agency argues that such a request is not outside complainant's position
description because his position description contains a paragraph that
he will perform additional duties as assigned. We find the agency has
presented a legitimate, nondiscriminatory reason for its action which
complainant failed to adequately rebut.
With regard to denial of leave, we find complainant has failed to
show discrimination. Complainant argues he was discriminated against
when he was denied leave. The agency argues that complainant did not
submit adequate documentation as required by standard government policy
concerning extended sick leave. More importantly, the record indicates
that complainant's leave was granted. Complainant has not shown
that the agency's request for medical documentation was a pretext for
discrimination or was unreasonable. The agency presented a legitimate,
nondiscriminatory reason for its action which complainant failed to
adequately rebut.
We find that complainant failed to show, by a preponderance of the
evidence, that he was discriminated against on the bases of sex, age,
disability or reprisal. We make this determination without making a
finding as to whether complainant is an individual with a disability
under the Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
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
November 17, 2005
__________________
Date