Monte A. Servey, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 17, 2003
01A21028 (E.E.O.C. Mar. 17, 2003)

01A21028

03-17-2003

Monte A. Servey, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Monte A. Servey v. Department of Veterans Affairs

01A21028

March 17, 2003

.

Monte A. Servey,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A21028

Agency No. 97-1268

Hearing No. 230-99-4192X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29

C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS

the agency's final order.

The record reveals that, during the relevant period, complainant was

employed as a WG-5, Equipment Mechanic's Helper, at the agency's Ann

Arbor Medical Center facility in Michigan. On September 27, 1996,

complainant injured himself on the job injury while lifting equipment.

Complainant was placed on light duty and sedentary restrictions.

In addition, complainant was on a fifty (50) pound lifting restriction

and a 30 pound pushing/pulling restriction. On October 11, 1996,

complainant's physician changed his restrictions to 30 pounds lifting,

pushing and pulling.

The record reflects that on October 18, 1996, complainant was ordered to

assist his supervisor (S1: no known disability, no known prior protected

activity) in installing a Trane package unit. The record also reflects

that the unit weighted 140 pounds. On the same day, S1 instructed

complainant to remove a window air conditioning unit and install a window.

Complainant testified that he re-injured himself as a result.

Complainant filed a formal EEO complaint on March 10, 1997, alleging that

the agency had discriminated against him by subjecting him to a hostile

work environment on the basis of disability (right inguinal hernia)

and in reprisal for prior EEO activity when:

(1) on October 18, 1996, he was removed from a mandatory Occupational

Safety and Health Administration (OSHA) class for the engineering

section and

S1 made him lift, push and/or pull in excess of his restrictions on

several occasions.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant failed to show that the agency

discriminated against him on the basis of his disability. Specifically,

the AJ found that because complainant's disability was a temporary

condition, he could not establish that he had a disability as defined

by the Rehabilitation Act. The AJ also found that the evidence does

not support that complainant had any other disability or a history of

a disability. The AJ further found that there was no evidence that

agency officials perceived that complainant had a disability or was

regarded as disabled.

The AJ found that although complainant established a prima facie case

of reprisal, complainant failed to establish a of case of hostile work

environment. In particular, the AJ found that S1 was similarly hostile to

other employees in their work environment and conditions and that S1 was

hostile towards complainant long before he engaged in protected activity.

The agency's final order implemented the AJ's decision. On appeal,

complainant contends that many of his witnesses could hardly recall

the events due to the amount of time that had passed before the case

was heard before an AJ. Complainant also contends that the AJ erred

when she did not allow him to present additional proof of his service

connected disabilities. Complainant claims that he was subjected to

a hostile or offensive work environment when S1 denied him training

opportunities and ignored weight restrictions because of his disability

and/or prior protected activity. The agency did not submit a response

to complainant's appeal.

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.

In order to establish a hostile work environment claim based on

disability, complainant must prove: (1) he is a qualified individual with

a disability within the meaning of the Rehabilitation Act; (2) he was

subjected to unwelcome harassment; (3) the harassment was based on his

disability; (4) the harassment was sufficiently severe or pervasive to

alter a term, condition, or privilege of employment; and (5) some factual

basis exists to impute liability for the harassment to the employer.

See Fox v. General Motors, 247 F.3d 169 (4th Cir. 2001).

We find no basis in the record evidence to support this claim. In point

of fact, the record establishes that S1 treated complainant, and most

of his co-workers in a hostile fashion. Complainant testified that

S1 was aggressive towards him even before his injury or participation

in protected activity. The record also shows, that complainant and

S1 almost got into a fist fight and S1 threatened to contract out

complainant's job prior to his injury. Consequently, and assuming

that complainant is a qualified individual with a disability within the

meaning of the Rehabilitation Act, we find that complainant failed to

present sufficient evidence to show that S1's behavior was motivated by

either of complainant's articulated bases.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record and

that the AJ's decision referenced the appropriate regulations, policies,

and laws. We note that complainant failed to present evidence that any

of the agency's actions were in retaliation for complainant's prior EEO

activity or were motivated by discriminatory animus toward complainant's

disability. We discern no basis to disturb the AJ's decision. Therefore,

after a careful review of the record, including complainant's contentions

on appeal and arguments and evidence not specifically addressed in this

decision, we AFFIRM the agency's final order.

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

March 17, 2003

__________________

Date