Melvin C. Gosa, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 28, 2000
01972468 (E.E.O.C. Jan. 28, 2000)

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)).