01975597
05-11-2000
Kenneth A. White, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Kenneth A. White v. National Aeronautics and Space Administration
01975597
May 11, 2000
Kenneth A. White, )
Complainant, )
)
v. ) Appeal No. 01975597
) Agency No. NCN-95-LeRC-AO66
Daniel S. Goldin, ) Hearing No. 220-96-5285X
Administrator, )
National Aeronautics and )
Space Administration, )
Agency. )
_____________________________________)
DECISION
Complainant timely appealed the final decision of the National Aeronautics
and Space Administration (agency), concerning his complaint claiming
that the agency discriminated against him on the basis of his physical
disability in violation of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq. when: (1) he was denied a request for an irregular
tour of duty during June 1995; and (2) he was charged absence without
official leave (AWOL) for sick leave taken during May 1995.<1> This
appeal is accepted in accordance with 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.
Complainant filed a formal complaint alleging that the agency
discriminated against him as stated above. The agency accepted
complainant's complaint, conducted an investigation, and provided
complainant with a copy of the investigative report. Thereafter,
all administrative procedures were met for a hearing before an EEOC
administrative judge (AJ). A hearing was held, and the AJ issued
a recommended decision on March 20, 1997, finding no discrimination.
The agency subsequently adopted<2> the AJ's decision in a final agency
decision (FAD) dated May 30, 1997.
The AJ found that even assuming complainant had established that
he was entitled to the protections of the Rehabilitation Act, the
medical evidence, or testimony, failed to establish a causal connection
between his medical condition and his time and attendance difficulties.
The AJ noted that the mere fact that a disabling condition coincides
with excessive absenteeism is insufficient to establish a nexus, in the
absence of evidence demonstrating a link between the two. The AJ further
advised that complainant must establish that his absences stemmed from his
medical condition, for example by submitting medical documentation that
proves that his absences were medically necessitated due to his disabling
condition. The AJ concluded that the record lacked such evidence.
Therefore, complainant failed to show that he was discriminated against
as alleged.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
administrative judge 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 Cameral 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).
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision is supported by substantial evidence.
We specifically note that although complainant was granted an extension of
time to submit a supporting statement for his appeal, he failed to do so.
We discern no persuasive evidence in the record which would support
reversing the AJ's recommended decision finding no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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").
FOR THE COMMISSION:
May 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.
2We note that the FAD modified the AJ's RD to include the issue
involving complainant's request for an irregular tour of duty and the
agency provided a conclusion regarding whether complainant established
a prima facie case. The agency also added an undue hardship argument
regarding complainant's requested accommodation.