01984217
01-24-2000
Larry Radford, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Larry Radford, )
Complainant, )
) Appeal No. 01984217
v. ) Agency No. 97-2196
) Hearing No. 340-97-3680X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
In accordance with the provisions of Equal Employment Opportunity
Commission (EEOC or Commission) Order No. 960.001, complainant's appeal
from the agency's final decision in the above-captioned matter has been
accepted by the Commission.<1> For the reasons that follow, it is the
decision of the Commission to AFFIRM the agency's final decision, which
adopted the recommended findings and conclusions of the Administrative
Judge (AJ).
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 EEOC
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). Factual findings include findings based on either
testimonial or documentary evidence. A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). All legal conclusions by an AJ are subject
to de novo review by the Commission, whether or not a hearing was held.
On appeal, complainant, by counsel, contends that (1) the AJ erred
in concluding that he was not an "individual with a disability"
within the meaning of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791, et seq.; (2) management was on notice that complainant was
an "individual with a disability," or should have learned this based on
information contained in complainant's employment application; and (3)
complainant was denied the reasonable accommodation he requested, and
was subsequently terminated, in part because the responsible management
official incorrectly believed that he was only obligated to accommodate
employees whose disability arose from an on-the-job injury.
Based on our review of the record, we discern no basis to disturb the AJ's
findings and conclusions, which gave full and fair consideration to the
issues presented in this matter. In particular, we agree with the AJ's
determination that complainant was not an "individual with a disability"
within the meaning of the Rehabilitation Act, and accordingly we do not
reach the remainder of the issues presented on appeal.
We note, however, that the record indicates that various management
officials incorrectly concluded that a qualified individual with
a disability is not entitled to reasonable accommodation under the
Rehabilitation Act unless his disability resulted from an on-the-job
injury. To the contrary, "an employer may not avoid its obligation to
accommodate an individual with a disability simply by asserting that the
disability did not derive from occupational injury." Bradley v. United
States Postal Service, EEOC Appeal No. 01962747 (October 22, 1998)
(citing EEOC Enforcement Guidance on Workers' Compensation and the ADA,
Notice No. 915.002 (September 3, 1996)). While the Rehabilitation
Act does not require an employer to create a light duty position as an
accommodation, it does require an employer, absent undue hardship, to
accommodate a qualified individual with a disability by restructuring a
position through redistribution of marginal functions which he cannot
perform because of disability, or by reassigning him to an equivalent
existing vacancy for which he is qualified, regardless of the cause of the
employee's disability. Id. The agency should review such obligations
accordingly with its management officials, including those who handled
the instant situation. Nevertheless, with respect to the instant claim,
because complainant has not established that he is an individual with
a disability, we do not reach the issue of whether the agency failed to
accommodate him.
Therefore, after a careful review of the record, including any appeal
contentions by the parties, and any other arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
decision.
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:
January 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant
1 On 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.