Patrick J. Ward, Complainant,v.Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01972689 (E.E.O.C. Apr. 11, 2000)

01972689

04-11-2000

Patrick J. Ward, Complainant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.


Patrick J. Ward v. Department of Veteran's Affairs

01972689

April 11, 2000

Patrick J. Ward, )

Complainant, )

) Appeal No. 01972689

v. ) Agency No. 024C

)

Togo D. West, Jr., )

Secretary, )

Department of Veteran's Affairs, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of physical and mental disability (bi-polar disorder and relapse

of drug and alcohol dependency), in violation of the Rehabilitation Act

of 1973,<1> as amended, 29 U.S.C. � 791, et seq.<2> Complainant alleges

he was discriminated against when he was not promoted to the position

of GS-5 Lead Medical Clerk, Outpatient Clinic. Complainant further

alleges that his resignation from the position of GS-4 Medical Clerk

constituted a constructive discharge. The appeal is accepted pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405). For the following reasons, the Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was employed

as a GS-4 Medical Clerk, at the agency's Medical Center facility in

Northampton, Massachusetts. Complainant alleged that he applied for

the position of GS-5 Lead Medical Clerk in the facility's Outpatient

Clinic under vacancy announcements 94-11 and 94-32, which were closed

on April 22, 1994 and October 17, 1994, respectively. The record

reflects that between July 8-9, 1994, complainant was hospitalized due

to a relapse connected to drug and alcohol abuse. Upon his return to

work, complainant alleges that his supervisor (S1) informed him that

he would not be reclassified or promoted to a GS-5 position as he would

not be rewarded for having a relapse. On April 21, 1995, complainant

resigned from his position, as he believed that he had little chance for

advancement at the facility and decided to return to school. Believing he

was a victim of discrimination, complainant sought EEO counseling and,

subsequently, filed a complaint on July 31, 1995. At the conclusion of

the investigation, complainant requested that the agency issue a final

agency decision.

The FAD concluded that complainant failed to establish a prima facie case

of disability discrimination because he had not submitted evidence that

he had that a bi-polar disorder. The agency also noted that the current

use of cocaine and alcohol would not constitute a disability as defined

by the Rehabilitation Act. Accordingly, the agency found that complainant

failed to establish that he is an individual with a disability as defined

by the Rehabilitation Act. The FAD further found that even assuming that

complainant was an individual with a disability and had established a

prima facie case of disability discrimination, the agency articulated a

legitimate, nondiscriminatory reason for the nonselection, namely that

complainant did not have enough specialized experience for the position

at issue. The FAD further found that the evidence was insufficient to

demonstrate that the agency's reason was pretextual in nature.

Regarding complainant's allegation of constructive discharge, the

FAD found that complainant's resignation appeared to be voluntary and

that he had not shown that a reasonable person would have found that

the denials of his promotion applications to constitute intolerable

working conditions. The FAD found that complainant was presented with

an opportunity to apply for another promotion prior to his resignation,

but decided to quit instead. Further, the FAD found that even if the

two nonpromotions constituted intolerable working conditions, there is no

evidence that they were violations of Title VII or were discriminatory,

as the agency articulated a legitimate, nondiscriminatory reason for

the nonselections, namely, he did not meet the minimum requirement of

specialized experience for the GS-05 position. Thus, the FAD found that

complainant was not discriminated against on the basis of disability.

Neither complainant nor the agency has made arguments on appeal.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and Prewitt v. United States Postal

Service, 662 F.2d 292 (5th Cir. 1981), the Commission finds even

assuming, arguendo, that complainant established a prima facie case of

disability discrimination when he was twice not selected for a GS-5 Lead

Medical Clerk position, the agency articulated a legitimate,

nondiscriminatory reason for his nonselection. Specifically, we find as

credible the agency's testimony that complainant was not selected for the

GS-5 position as he did not meet the minimum requirement of one year of

specialized experience in the primary care area required for a promotion.

We further find that complainant has failed to establish that the agency's

articulated reasons for his nonselection were pretextual in nature.

In so finding, we note that S1 denied telling complainant that he was

not selected for promotion or reclassified due to his drug relapse.

The Commission further finds that complainant failed to establish

that his resignation was the result of a constructive discharge.

The Commission has established three elements which complainant

must prove to substantiate a claim of constructive discharge: (1) a

reasonable person in complainant's position would have found the working

conditions intolerable; (2) conduct that constituted discrimination

against complainant created the intolerable working conditions; and (3)

complainant's involuntary resignation resulted from the intolerable

working conditions. See Lucas v. Dept. of the Navy, EEOC Document

No. 01965130 (October 1, 1998); Harrell v. Dept. of the Army, EEOC

Request No. 05940652 (May 24, 1995). As complainant is unable to

establish element two of the constructive discharge claim, i.e., the

agency engaged in discriminatory conduct which created the intolerable

working conditions, complainant's constructive discharge claim also fails.

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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 11, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination by

federal employees or applicants for employment. Since that time, the ADA

regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability

discrimination. These regulations can be found on EEOC's website: www.eeoc.gov.

2 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.