01a03286
08-08-2002
John S. Link v. Social Security Administration 01A03286 08-08-02 . John S. Link, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
John S. Link v. Social Security Administration
01A03286
08-08-02
.
John S. Link,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A03286
Agency Nos. 293-93 & 868-93
Hearing Nos. 120-98-9595X & 120-98-9596X
DECISION
On March 21, 2000, John S. Link (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 Title VII of the Civil Rights Act of 1964, 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 � 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 (52), sex (male), and disability (emotional and gastrointestinal
problems) when he was denied reasonable accommodation; and 2.on the
bases of his sex, disability, and in reprisal for prior EEO activity
under Title VII, the ADEA and Rehabilitation Act when he received a
lower performance award than other employees, and was reassigned to a
Social Insurance Specialist position.
BACKGROUND
Complainant filed formal EEO complaints in January 1993 and August 1993,
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 matters alleged. Specifically, the AJ found that complainant failed
to establish a prima facie case with regard to any of the cited bases.
The AJ further noted that, nevertheless, the agency did reasonably
accommodate complainant by offering to move him to another office, and
cease having him work with a specific employee (HW). The AJ also stated
that the agency articulated legitimate reasons for the amount of the
performance award, and the reassignment, and that complainant failed
to show that the stated reasons were a pretext for discrimination.
The agency, in a decision dated March 10, 2000, implemented the AJ's
decision. It is from this decision that complainant now appeals.
According to the record, complainant was working as a Management Analyst,
GS-13, when, on November 7, 1991, his supervisor (JO) became angry
with him. Complainant acknowledged that he had been working under this
supervisor since 1988, and had an excellent working relationship prior
to the 1991 incident. JO was subsequently moved to another office,
and retired in February 1992. In March 1992, complainant submitted a
letter to his new supervisor (JL), requesting reassignment away from
HW with whom he shared an office. At that time, complainant made no
mention of any medical conditions. Complainant stated that he advised
JL that he was experiencing gastrointestinal and emotional problems in
June 1992; however, he acknowledged that he did not submit any medical
documentation to the agency at that time. It appears that JL offered,
several times, to move HW to another office, and to assign her duties
which did not require having to work with complainant. Each time,
however, complainant declined the offers.
On December 7, 1992, complainant submitted a letter to JL requesting
reassignment. He attached a December 3, 1992 letter from his
psychiatrist (Dr. B), stating that he was experiencing a stress induced
"psycho-physiologic reaction," with symptoms of anxiety and depression,
and symptoms relating to the gastrointestinal tract.<1> Dr. B noted
that reassignment to a less stressful position appeared to be the
only solution. JL offered to immediately move complainant to another
office away from HW, but complainant stated that he would wait until an
upcoming office move. Complainant submitted another letter requesting
reassignment on December 21, 1992. Following periods of leave by JL and
complainant, complainant ultimately moved in January 1993. JL averred
that she examined complainant's official personnel file, and requested
a list of vacant GS-13 positions in an attempt to locate a position
for complainant. She also advised complainant that she would refer
his application to other offices, but complainant refused this offer.
Complainant was ultimately reassigned to a Social Insurance Specialist,
GS-13, position in July 1993. Complainant stated that he worked between
five and seven days in that position, and then applied for disability
retirement.<2> Complainant stated that, prior to his reassignment,
he learned that two female GS-13 employees received higher performance
awards that he had.
In July 1993, Dr. B noted that complainant experienced an exacerbation
of his symptoms due to work related stress. He advised complainant to
modify his schedule. The record also contains a report from Dr. B dated
March 11, 1994, which repeated the December 1992 diagnosis. Dr. B noted
that complainant experienced symptoms of depression, stress, and anxiety
as a result of work related stress. Specifically, Dr. B cited problems
with JO and HW. Dr. B stated that complainant was unable to function
in his regular job. It is noted that complainant had previously filed
a workers compensation claim for a stress disorder, which was accepted
in 1988. Dr. B indicated, however, that complainant's condition was
stable prior to November 1991.
The record also includes several reports from complainant's
Gastroenterologist (Dr. G). In April 1992, Dr. G noted that complainant
likely had irritable colon syndrome, which was in part related to work,
his eating habits, and use of alcohol. Dr. G performed various tests,
the results of which were negative.
The agency's medical officer (Dr. F) conferred with Dr. B, and reviewed
complainant's medical documentation. Dr. F recommended that complainant
be reassigned, citing an apparent problem with a co-worker. Dr. F noted
that there was no evidence complainant was unable to perform his duties,
or any major life activities.
Complainant repeatedly stated that the job itself and his work assignments
did not cause him stress, and that he was able to perform his job
in a successful manner. Further, complainant received "outstanding"
performance evaluations. Complainant stated that, instead, it was his
relation with JO and HW that exacerbated his condition. Complainant
stated that he was not aware of any positions to which he could be
reassigned. Further, while he requested a detail to the History Room,
he acknowledged that he did not ask to be put into a specific position,
but only to be detailed to "a function."
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
matters alleged. With regard to issue 1, in order to establish a prima
facie case of disability discrimination, complainant must show that he
is an individual with a disability as defined in 29 C.F.R. � 1630.2(g),
and that he is a qualified individual with a disability as defined in
29 C.F.R. � 1630.2(m).<3> An individual with a disability 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). 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).
We find that complainant is not an individual with a disability within the
meaning of the regulations. As stated, the record shows that complainant
was diagnosed with a stress induced psycho-physiologic reaction, with
symptoms of anxiety and depression, and gastrointestinal symptoms.
Further, Dr. G stated that it was likely complainant had irritable
colon syndrome. Nevertheless, complainant has failed to show that
he is substantially limited with regard to any major life activity.
While Dr. B recommended that complainant be reassigned, he noted only that
complainant experienced problems with JO and HW. Further, as stated,
complainant repeatedly asserted that his work assignments did not cause
him stress, and that he was able to successfully perform his job. It is
noted that, in order to be considered substantially limited in the major
life activity of working, an individual must be significantly restricted
in the ability to perform either a class of jobs or a broad range of
jobs in various classes as compared to others having comparable training,
skills, and abilities. 29 C.F.R. �1630.2(j)(3)(i). Complainant has not
shown what class or broad range of jobs that he was unable to perform.
The Supreme Court has held that, to be substantially limited in the major
life activity of working, an individual must be precluded from more than
one type of job, a specialized job, or a particular job of choice. Sutton
v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel
Service, Inc., 527 U.S. 516 (1999); see also 29 C.F.R. �1630.2(j)(3)(i).
In this case, the record shows that complainant was at most unable to work
with two specific individuals. Further, the record contains no evidence
that complainant had a record of a disability, or that he was perceived
as disabled by the agency. Accordingly, we find that complainant has
not established a prima facie case of disability discrimination.
While complainant also asserted that he was denied reasonable
accommodation because of his sex and age, the AJ correctly found that
the record contains no evidence to support such a finding.
With regard to issue 2, the Commission agrees with the AJ that, even
assuming that complainant was able to establish a prima facie case,
the record does not support a finding of discrimination with regard to
the performance award and reassignment. Specifically, the agency stated
that the individuals who received higher awards developed an agency-wide
Employee Performance Management System. Although complainant worked on a
similar system, JL stated that it did not become operational during the
award period. The agency further noted that complainant was reassigned
to the Social Insurance Specialist position in response to his requests
to be moved away from HW. While complainant raised several objections
to the position during the processing of the instant complaint, he worked
in the job for only five to seven days. Further, complainant acknowledged
that his new supervisors stated they would work with him, and there is no
evidence he advised them of problems with his work space or assignments.
In fact, complainant stated that he was able to successfully complete
one of the assignments given him, and was not required to travel after
raising the issue with his supervisor. Finally, complainant testified
that he did not find the stress of the job to which he was reassigned
problematic. Accordingly, we find no reason to overturn the AJ's finding
that complainant was not subjected to discrimination with regard to the
performance award and reassignment.
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 claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1It is noted that while Dr. B stated that he had been seeing complainant
for many years for emotional problems, it appears from complainant's
testimony that he sought treatment for specific incidents, and had not
been seeing Dr. B continuously during the entire period.
2During the hearing, complainant specifically stated that he was not
raising an issue of constructive discharge.
3The 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.