01972468
01-28-2000
Melvin C. Gosa, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Melvin C. Gosa v. Department of Veterans Affairs
01972468
January 28, 2000
Melvin C. Gosa, )
Complainant, )
)
v. ) Appeal No. 01972468
)
Togo D. West, Jr., ) Agency No. 95-1292
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791, et seq.<1> In his complaint, complainant claimed that
he was discriminated against on the bases of race (African-American)
and physical disability (spinal fusion), when the agency failed to
accommodate his disability. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Licensed Practical Nurse, at the agency's Medical Center
in Tuscaloosa, Alabama. Complainant alleges that in 1991, he underwent
a neck and back surgery that left him with a 5% permanent partial
disability to his body. Complainant also alleges that his condition
makes him unable to perform various functions of his job involving the
lifting of more than 20 pounds of weight. Complainant asserts that he
first alerted his supervisor of his need for accommodation in the form
of reassignment in February 1994, repeating this request in January
1995. Complainant's supervisor ("CSV") states that the first and only
request for accommodation came in January 1995 and that complainant never
explained what accommodation was needed. In support of his accommodation
request, CSV states that complainant submitted progress notes from his
physician dated in 1993. CSV contends that because the progress notes
failed to indicate what limitations were placed on complainant, she
asked for more recent medical documentation explaining his disability
and restrictions. CSV states that complainant never submitted the
supporting medical documentation.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on March 27, 1995.
The agency accepted the complaint for processing, and at the conclusion
of the investigation, complainant was granted thirty days to request
a hearing before an EEOC Administrative Judge. Complainant requested
that the agency issue a final decision.
The FAD found that complainant failed to establish a prima facie case
of disability discrimination because he failed to submit evidence
demonstrating that he had a disability as defined by the Rehabilitation
Act. Likewise, the FAD concluded that complainant failed to establish
a prima facie case of race discrimination regarding his accommodation
request because he failed to demonstrate that similarly situated
employees not in his protected class were granted accommodations without
submitting supporting medical documentation. Assuming that complainant
had established his prima facie cases of discrimination, the FAD concluded
that the agency articulated a legitimate, nondiscriminatory reason for not
providing the accommodation, namely, that complainant failed to provide
the necessary medical documentation to support his accommodation request.
Finally, the FAD found that complainant failed to provide sufficient
evidence demonstrating that the agency's articulated reasons were a
pretext to mask unlawful discrimination.
On appeal, complainant makes no new contentions. In response to the
appeal, the agency requests that we affirm the FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Cansino v. Department of the Army, EEOC
Request No. 05960674 (August 27, 1998)(citing Prewitt v. United States
Postal Service, 662 F.2d 292 (5th Cir. 1981)), the Commission finds that
complainant failed to present sufficient credible evidence demonstrating
that he was subjected to disability or race discrimination. We find
that complainant failed to submit the necessary medical documentation
to support his need for an accommodation. While complainant did submit
his physician's progress notes, we find that the agency was justified
in requesting additional documentation, because these notes provided no
guidance as to the exact nature of complainant's disability or how the
agency could accommodate complainant.<2> Complainant should be aware that
under the Commission's regulations, an agency is only required to make
reasonable accommodation of the known physical and mental limitations of a
"qualified individual with a disability" as defined by the Rehabilitation
Act.<3> 29 C.F.R. � 1630.2(o) and (p). Complainant has the burden of
providing the agency with reasonable documentation about his disability
and functional limitations. 29 C.F.R. �1630 app. 1630.9; see also EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, No. 915.002, no. 24 (March 1, 1999).
Here, we find that under the circumstances, the agency was reasonable in
its request for more recent medical documentation to allow it to determine
the nature of complainant's disability and functional limitations.
As for complainant's claim of racial discrimination, we agree the FAD that
complainant failed to establish a prima facie case because other than his
vague statements that others outside his race were treated differently,
complainant has not presented any evidence showing that others outside his
protected group were given accommodations after failing to present the
necessary medical documentation. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
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 28, 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
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.
2 While complainant's request for accommodation was in 1995, the
physician's notes accompanying the request were from the period between
January and March 1993. The notes indicated that as a result of neck
and back surgery, complainant suffered 5% partial permanent disability
to his whole body. Other than placing a twenty-five pound lifting
restriction on complainant, the notes provide no explanation of how
the injury restricts complainant in performing his job duties or if the
lifting restriction was a permanent restriction.
3 Pursuant to the Rehabilitation Act Amendments of 1992, the Americans
with Disabilities Act's employment standards apply to all non-affirmative
action employment discrimination claims filed by federal applicants or
employees with disabilities under Section 501 of the Rehabilitation Act.
Pub. L. No. 102-569 � 503(b), 106 Stat. 4344 (1992)(codified as amended
at 29 U.S.C. � 791(g)(1994)).