Kenneth A. White, Complainant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionMay 11, 2000
01975597 (E.E.O.C. May. 11, 2000)

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.