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which was later withdrawn pursuant to a settlement agreement entered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.