Mary J. Sullivan, Appellant,v.Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01973555 (E.E.O.C. Oct. 20, 1999)

01973555

10-20-1999

Mary J. Sullivan, Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.


Mary J. Sullivan, )

Appellant, )

) Appeal No. 01973555

v. ) Agency No. 95-1400

)

Togo D. West, Jr., )

Secretary, )

Department of Veteran's Affairs, )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of reprisal (prior EEO activity), and physical disability (wrist

injury and Carpel Tunnel Syndrome), in violation of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges she was

discriminated against when: (1) she was denied a reasonable accommodation;

and (2) on January 27, 1995, she was removed from service. The appeal

is accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant was

employed as a Food Service Worker, at the agency's Dietetic Service,

VA Medical Center, in Little Rock, Arkansas. Appellant alleged that on

July 30, 1989, she injured her right wrist when she bumped it on a cart.

Thereafter, she developed a ganglion cyst, and had several surgeries on

her wrist.<1> Appellant alleged that although other employees have had

their disabilities accommodated, the agency has failed to accommodate

her disability. Appellant contended that when the agency placed her in

alternative working assignments, other employees behaved rudely towards

her, and interfered with her job duties. Her removal from the agency

followed on January 27, 1995.

The record reveals that appellant also filed an EEO complaint in 1993,

which was later withdrawn pursuant to a settlement agreement entered

into between appellant and the agency. Appellant also alleged in the

instant complaint that the agency retaliated against her for filing her

prior EEO complaint when they issued her the Notice of Removal and denied

her an accommodation.

Believing she was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a complaint on March 29, 1995. At

the conclusion of the investigation, appellant requested that the agency

issue a final agency decision.

The FAD concluded that appellant had a disability within the definition

in the Rehabilitation Act, but also found that appellant failed to

establish a prima facie case of disability discrimination. Specifically,

the agency found that appellant failed to establish an inference of

discrimination because she presented no evidence that similarly situated

individuals not in her protected classes were treated differently under

similar circumstances. However, the agency did find that appellant

had established a prima facie case of failure to accommodate in that

she showed that she had requested accommodations, and that her medical

restrictions could be accommodated. With respect to her claim of

retaliation, the agency found that appellant failed to establish a prima

facie case of reprisal discrimination in that she failed to show that

agency officials were aware of her prior EEO activity when it issued

her the Notice of Removal.

In its FAD, the agency also found that it had articulated legitimate,

nondiscriminatory reasons for the Removal, specifically, the agency cited

appellant's history of absence without leave record and insubordination

charges. The agency also found that appellant had failed to prove

that these reasons were pretext for discrimination. With respect

to appellant's allegation that the agency failed to accommodate her

disability, the agency found that appellant had been supplied with

reassignments, which were in compliance with her medical restrictions,

both in and outside of Dietetic Services, but that appellant had

not worked well in the positions due to inadequate typing skills or

personality disputes.

After the agency issued its final decision, appellant originally filed an

appeal with the Office of Federal Operations. See Sullivan v. Dept. of

Veteran's Affairs, EEOC Appeal No. 01965961 (October 31, 1996).

The agency then notified the Commission that appellant had mistakenly

not been supplied appeal rights to the Merit Systems Protection Board

(MSPB). As such, the agency mailed appellant the appropriate rights as a

mixed case, and appellant filed an appeal of the agency's Removal action

with the MSPB. On January 17, 1997, the MSPB issued a dismissal of her

appeal, finding that the agency's removal action had been canceled by

appellant's receipt of disability retirement benefits retroactive to her

last day in pay status. Accordingly, the MSPB found that it no longer

had jurisdiction over the matter, and notified appellant that she could

pursue the matter before the Office of Federal Operations. Appellant

subsequently filed this appeal.<2> In her appeal to the Commission,

appellant submitted a statement describing the various clerical positions

in which the agency placed her. Appellant explained that during those

assignments, she was often distracted by other co-workers who did not

believe that she should be on light-duty. Appellant also described

personality disputes she encountered on her assignments. In response

to appellant's appeal, the agency asks that we affirm the FAD.

Failure to Reasonably Accommodate

In order to establish a prima facie case of disability discrimination

under a reasonable accommodation theory, appellant must show that she is

an "individual with a disability"; that she is a "qualified individual

with a disability"; and that the agency failed to reasonably accommodate

her disability. An "individual with a disability" is defined as "one

who: (1) has a physical or mental impairment which substantially limits

one or more of such person's major life activities, (2) has a record of

such an impairment, or (3) is regarded as having such an impairment." 29

C.F.R. s1614.203(a)(1). Major life activities are functions such as

caring for one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).

A "qualified individual with a disability" is one who meets the

education and/or experience requirements for the job and can perform the

essential functions of the job with or without reasonable accommodation.

29 C.F.R. �1614.203.(a)(6).

As noted above, the agency found that appellant is a qualified person with

a disability. Following her injury and re-injury, appellant presented

a set of physical limitations and restrictions to the agency. These

restrictions constituted a request for reasonable accommodation, in

that, the agency was made aware of restrictions on her performance of

her position. See May v. USPS, EEOC Appeal No. 01954860 (July 21, 1997).

However, it is not apparent that the agency failed to accommodate her

disability. In so finding, we note that the agency initiated several

attempts to reasonably accommodate appellant following her injury.

Specifically, agency officials testified that appellant had been

repeatedly supplied light duty assignments, both inside and outside of

Dietetic Services. Although the various light duty assignments were in

compliance with appellant's medical restrictions, the accommodations

apparently did not work out. For instance, the record reveals that

following her initial injury, appellant was placed in light duty

assignment which restricted her to the following tasks: passing

out individual cartons of milk, putting bread in the rotary toaster,

replenishing condiment containers, and wiping tables, chairs and window

sills. In May of 1992, however, appellant re-injured herself when

she lifted a crate of milk cartons. Her physician then restricted to

lifting no more than 10 lbs., and she was assigned the following duties:

walking trays, placing milk in the milk box, sorting silverware, storing

dish racks and sweeping the floor.

The Assistant Chief of Dietetic Services testified that appellant wanted

a reassignment outside of Dietetic Services. So, in 1993, at appellant's

request, she was provided Basic Typing Instruction and was assigned to

various clerical assignments, which were within her medical restrictions.

Specifically, in January 1994, she was detailed to the Security Office,

but was found to not be a proficient typist. In March 1994, she was

detailed to the Surgery Office, where she had to answer phones and do

some data entry. However, appellant missed some work, and the position

was eventually competitively filled. Appellant was then placed in the

Food Service Office where she performed clerical work. According to

testimony in the record, appellant encountered personality conflicts

with the secretary in the office.

Based on the evidence of record, we find that the agency attempted

to find appellant an accommodation for her disability, but that its

efforts did not work out due to appellant's inadequate typing skills and

personality disputes. As such, we find that the agency did not fail to

provide a reasonable accommodation to appellant and did not discriminate

against her based on disability.

The January 1995 Notice of Removal

Testimony in the record reveals that appellant repeatedly missed

work, and failed to call in and report that she would not be at work.

The record reveals that on December 27, 1994, she was issued a Notice

of Proposed Removal for failing to report to work on November 3 and 4,

1994. Although appellant requested Leave Without Pay for those days,

her requests were denied. Furthermore, she was cited as being Absent

Without Leave (AWOL) on November 29, 1994. On that day, she requested

two hours of annual leave in lieu of sick leave, which was denied because

she did not have enough annual leave to cover her entire absence.

The Notice of Proposed Removal also referenced past disciplinary

problems including an admonishment on April 23, 1992, for being AWOL;

as well as a five day suspension for insubordination, five days of AWOL

and for failure to observe safety precautions. On December 17, 1992,

appellant received a 14 day suspension for AWOL charges in November 1992,

and on January 26, 1993, she received a proposed removal for AWOL charges

in November and December 1992.

In response to her proposed removal letter at issue in the instant

appeal, appellant supplied medical documentation to support her absence

on November 3 and 4, as well as November 29 and 30, 1994. She stated

that she had not originally supplied documentation because she believed

she had enough sick leave hours to cover the absence. On January 24,

1995, the agency issued her a Notice of Removal referencing the Notice

of Proposed Removal.

After a careful review of the record, based on McDonnell Douglas v. Green,

411 U.S. 792 (1973), Prewitt v. United States Postal Service, 662 F.2d 292

(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the

Commission finds that appellant has failed to show that the agency's

reasons for issuing the Notice of Removal were a pretext for disability

or reprisal discrimination. The record contains both testimonial and

documentary evidence which supports the agency's position that appellant

failed to contact the agency when she could not come into work, thus

incurring AWOL charges. Although appellant has supplied some medical

documentation for some of her absences, which were supplied well after

the fact, the bulk of her AWOL charges are unexplained. Furthermore,

she has failed to prove that the agency's reliance on her failure to call

or report for duty as reasons for the Notice of Removal, were pretext

for discrimination. In sum, appellant has failed to provide sufficient

evidence that the Removal action was based upon a discriminatory or

retaliatory motive.

Therefore, after a careful review of the record and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

10/20/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)

TO:

CARLTON M. HADDEN

APPEAL NUMBER

01973555

AGENCY NUMBERS

95-1400

REQUEST NUMBER

HEARING NUMBERS

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY):

Rachel Decter

8/17/99

(SUPERVISOR):

Marjorie Borders

(DIVISION DIRECTOR):

DATA SHEET

APPELLANT(S):

Mary J. Sullivan

AGENCY:

VA

DECISION:

Affirmed

STATUTE(S) ALLEGED:

REHAB

BASIS(ES) ALLEGED:

HP, OR

ISSUE(S) ALLEGED:

D2, A2

WHERE DISCRIMINATION IS FOUND (ONLY):

(A) BASIS(ES) FOR FINDING:

(B) ISSUES IN FINDING:

TYPIST/DATE/DISKETTE

RD5 | 8/17/99 | p:fy99.01973555

SPELL CHECK

Yes

TEAM PROOFED

Cmc

DATE

8/18/99

(CHECK ALL APPLICABLE CODES)

MERIT DECISION

MERIT DECISION (CONTINUED)

X 4A - MERITS DECISION

? 4B - OFO FOUND DISCRIMINATION

LIST BASIS CODES:____________________

LIST ISSUE CODES:____________________

X 4C - OFO FOUND NO DISCRIMINATION

? 4R - OFO FOUND SETTLEMENT BREACH

? 4S - OFO FOUND NO SETTLEMENT BREACH

? 4E - AGENCY FOUND DISCR./BREACH

X 4F - AGENCY FOUND NO DISCR./BREACH

X 4H - OFO AFFIRMED AGENCY

? 4I - OFO REVERSED AGENCY

? 4J - OFO MODIFIED AGENCY:

(NOTE): IF AFFIRMED IN PART AND REVERSED IN

PART, THEN (3L) CODE REQUIRED IF AT LEAST

ONE ISSUE IS REMANDED.

? 3L - OFO REMANDED PART OF AGENCY'S MERITS

DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO

REQUIRES (4I) CODE.

? 4K - AJ FOUND DISCRIMINATION

? 4L - AJ FOUND NO DISCRIMINATION

? 4M - AJ MADE NO FINDING

? 4N - OFO AFFIRMED AJ

? 4O - OFO REVERSED AJ

? 4P - OFO MODIFIED AJ

? 3H - OFO DENIED ATTORNEYS FEES

? 3I - OFO APPROVED ATTORNEYS FEES

? 3J - OFO MODIFIED ATTORNEYS FEES

? 4Q - COMPLIANCE

REQUIRED

1In addition to her wrist problems, appellant contended that she suffered

from back problems, but did not provide any evidence thereof.

2The matter then came before the Office of Federal Operations as a

Petition for Review of an MSPB decision. See Sullivan v. Dept. of

Veteran's Affairs, EEOC petition No. 03970075 (April 10, 1997). It was

later re-docketed as the instant appeal.