01974659
03-24-2000
Larry L. Thompson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Larry L. Thompson v. Department of Veterans Affairs
01974659
March 24, 2000
Larry L. Thompson, )
Complainant, )
)
v. ) Appeal No. 01974659
) Agency No. 94-1622
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
On May 19, 1997, the complainant initiated a timely appeal from a final
decision of the agency dated March 24, 1997 concerning his complaint
of unlawful employment discrimination in violation of � 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. and Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. The appeal is accepted under 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified as 29 C.F.R. � 1614.401(a)).<1>
ISSUE PRESENTED
Whether the complainant was discriminated against on the bases of
disability (diabetic with feet complications) and reprisal (EEO activity)
when he was terminated while on probation in January 1994.
BACKGROUND
The complainant filed an EEO complaint alleging the above issue. Following
an investigation, he requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge, but then withdrew his
request.
The complainant formerly worked at the agency's Medical Center in
Birmingham, Alabama as a Nuclear Medicine Technologist, GS-5. He was
responsible for imaging patients and related activities. This required
working with radioactive materials, injecting patients for studies,
and creating accurate medical records.
The complainant was removed because his performance and progress did not
meet expectations. The Chief of Nuclear Medicine explained he initiated
the termination because despite training and instruction, the complainant
could not do the job without creating problems. The complainant's
supervisor, who recommended the termination, elaborated that the
complainant made many mistakes. He referenced multiple problems with
radiation safety and injecting patients.
The complainant is a diabetic with complications to his feet. He had
multiple foot operations between 1986 and his 1994 affidavit. A medical
note by his physician stated the complainant could work as a nuclear
technician without restrictions. The complainant affirmed that his
medical condition did not impact his work.
The agency issued the notice of removal in December 1993, effective
in January 1994. With regard to his reprisal claim, the complainant
affirmed that on his last day of work, the Chief of Nuclear Medicine said
to him that if the claimant brought a claim, he would never work again.
The claimant stated it was known he was thinking about filing an EEO
claim. The Chief was asked whether during the removal proceeding he
told the complainant that if he filed a complaint he would not work in
any Veterans Affairs Medical Center again, and affirmed that he did not.
On appeal, the complainant makes no comment.
ANALYSIS AND FINDINGS
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence
of discrimination has been presented. Although McDonnell Douglas is a
Title VII case, its analysis is also applicable to disparate treatment
cases brought under the Rehabilitation Act. See Prewitt v. U.S. Postal
Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981). McDonnell Douglas
requires the complainant to first establish a prima facie case. If the
complainant succeeds, the agency's burden then is to articulate some
legitimate, nondiscriminatory reason for its action in order to rebut
the prima facie case of discrimination. Finally, the complainant has
the opportunity to show, by a preponderance of the evidence, that the
agency's stated reason is a pretext for discrimination. The ultimate
burden of proof that discrimination took place is on the complainant.
For purposes of analysis, we will assume, without finding, that the
complainant is a qualified individual with a disability under 29 C.F.R. �
1630.2.<2>
Since the agency articulated legitimate, nondiscriminatory reasons
for removing the complainant, as set forth below, we may proceed
directly to whether he demonstrated by a preponderance of the evidence
that the agency's reason was merely a pretext to hide discrimination.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).
The agency explained that it terminated the complainant during his
probationary period because he failed to meet performance and progress
expectations. Specifically, he made many mistakes, having multiple
problems with radiation safety and injecting patients.
The complainant argues this is pretext to mask discrimination.
He averred that some radioactive contaminations he was blamed for were
unavoidable and not his fault, and at least one was caused by someone
else. He averred that he got cited for failures in radiation safety
when others were not cited, that he got cited when he was following
correct procedure, and that others had radiation safety incidents.
The complainant affirmed that he was monitored, and that he improved
during his probationary period.
The record reflects that the complainant was monitored, but in response
to radiation safety problems. Also, while it is true that others
had radiation safety incidents, the record shows the complainant
had more problems. The complainant has not shown he was improperly
blamed for radiation safety incidents, and his contention that others
received better treatment with regard to citations is uncorroborated.
Further, the complainant had continual difficulty injecting patients,
a core part of his job. Finally, the Chief of Nuclear Medicine credibly
denied that he told the complainant he would not get a job anywhere if
he filed a complaint. The complainant failed to establish pretext or
otherwise prove discrimination.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which found that the complainant was not discriminated against
when he was removed in January 1994.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 24, 2000
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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:
_________________________
_________________________
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 .
2The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.