Larry L. Thompson, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01974659 (E.E.O.C. Mar. 24, 2000)

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.