0120062155
12-14-2007
Michael E. Slovak, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Michael E. Slovak,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200621551
Agency No. ARCEHUNTV04DEC08744
Hearing No. 130-2005-00274-X
DECISION
Complainant filed an appeal from an agency's final action dated January
5, 2006, finding no discrimination with regard to his complaint.
In his complaint, dated March 7, 2005, complainant, a GS-0018-11
Safety & Occupational Health Specialist, Huntsville, Alabama, alleged
discrimination based on disability (chronic Hepatitis C) when on August
26, 2004, the agency's Civilian Personnel Advisory Center (CPAC),
Redstone Arsenal, Alabama, withdrew its tentative offer of assignment,
for a period of one year, to a GS-0018-12 Safety and Occupational Health
Specialist position with a duty station in Baghdad, Iraq; on August 26,
2004, the agency failed to accommodate his disability when it withdrew
the foregoing offer; and, on August 26, 2004, the agency violated the
Rehabilitation Act by disclosing confidential information about his
medical condition.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ, after a hearing, issued a decision finding no discrimination,
which was implemented by the agency in its final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an 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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that
complainant had established a prima facie case of discrimination,
the agency articulated legitimate, nondiscriminatory reasons for the
alleged incidents. The AJ stated that during the hearing, complainant
admitted that he did not consider himself to be disabled and that he did
not need an accommodation to perform the essential functions of his job.
Furthermore, complainant also admitted that there was no accommodation
available that would have allowed him to be deployed to Iraq. Thus,
the AJ concluded that complainant was not entitled to any accommodation.
With regard to disclosing confidential medical information, the AJ stated
that complainant admitted that the individuals to whom the medical
information was disclosed were all involved in the evaluation process
which led to him being disqualified from going to Iraq.
With regard to withdrawing the job offer, the AJ stated that
during the course of his pre-deployment physical, it was revealed
that complainant's medical condition caused abnormal test results.
In addition to Hepatitis C, complainant's exam results showed evidence
of anemia and blood in his urine. Based on these factors, the agency
asked complainant to undergo further testing, but he refused to do so.
Thus, it was recommended that complainant's assigned duties should not
be further than one hour from definite medical care. The AJ found that
the agency's reasons for requiring complainant to undergo the additional
testing were job-related and consistent with business necessity, i.e.,
it wanted to determine if complainant's condition was stable, or whether
it would pose a direct threat to himself and to others, if he were allowed
to deploy to Baghdad, Iraq, which it considered to be a combat zone. The
AJ noted that complainant did not challenge the agency's pre-deployment
physical examination requirement.
Assuming (without deciding) that complainant was an individual with a
disability, the Commission finds that complainant failed to show that he
was denied a reasonable accommodation or that any agency actions were
motivated by discrimination. Complainant does not allege that he was
required to perform his duties beyond his medical restrictions.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
12/14/07
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120062155
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036