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.