0120071378
05-28-2009
Robert L. Taylor, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert L. Taylor,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071378
Agency No. 200H-0284-2006100006
DECISION
Complainant timely appeals to the Commission from the agency's decision
dated November 16, 2006, finding no discrimination.1 In his complaint,
complainant alleged discrimination based on race (African-American)
and disability when his request for accommodation was denied. After
completion of the investigation of the complaint, complainant did not
request a hearing. The agency then issued its decision concluding that
it asserted legitimate, nondiscriminatory reasons for its action, which
complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the alleged action. During the relevant time period at issue, complainant
was employed as an Assistant Chief of Operations Division at the
Information Technology Center. Complainant claimed that he was diagnosed
with "borderline schizophrenia" in 1980 and diabetes. Complainant stated
that he occasionally took medication for schizophrenia. This medicine
caused drowsiness, and he often overslept and reported late for work.
Thus, as an accommodation, complainant requested a change in his tour
of duty hours from 12am - 8:30am to 10pm - 6:30am. If his tour began
two hours earlier, complainant claimed that he would be able to take
his medication at 6:00 am and sleep until noon and he would no longer
be drowsy in the evening when required to report for duty. Complainant
submitted his doctor's statement dated September 16, 2005, proposing
this schedule. Therein, the doctor indicated that complainant took one
of his doses of the medication in the morning, and it was within that
two hour time period that he experienced decreased clarity and focus.
The agency indicated that the September 16, 2005 medical statement was
inadequate to determine whether complainant was entitled to accommodation
and the type of accommodation to which he was entitled. Management stated
that the facility had three shifts of work: 12:00am - 8:30am; 8:00am -
4:30pm; and 4:00pm - 12:00am. Management also stated that complainant's
request would cause a hardship on the production operations because they
would have to place him on a shift where they did not need an extra
person for two hours and take him off of a shift for two hours where
they needed him to work.
The agency, undisputed by complainant, indicated that in 2004, complainant
previously requested and was granted an accommodation to change his tour
of duty from 4:00pm - 12:00am to 12:00am - 8:30am, i.e., the present
duty tour, due to his leave usage and medication dosage.
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. We agree
with the agency that there is no documentation showing how a shift change
would compensate for the drowsiness complainant experiences after taking
his medication. Based on the foregoing, we find that complainant did not
present any evidence to demonstrate that his request to begin his tour
duty two hours early would have accommodated him any more effectively
than the existing accommodations.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
5/28/09
__________________
Date
1 Complainant's appeal is postmarked January 12, 2007. The evidence
in the record shows that the earliest complainant received the agency's
decision was on December 13, 2006. Complainant's appeal was filed within
the 30-day time limit.
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0120071378
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013