01A01492
08-14-2002
David A. West, Complainant, v. Michael Heyman, Secretary, Smithsonian Institution, Agency.
David A. West v. Smithsonian Institution
01A01492
August 14, 2002
.
David A. West,
Complainant,
v.
Michael Heyman,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 01A01492
Agency No. 97-52-082197
Hearing No. 100-98-8087X
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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> 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 complainant was a Supply Technician at
the agency's Office of Protection Services (OPS) in Washington, DC,
during the relevant time. Complainant avers that he injured his back
on April 1, 1996, resulting in a ruptured disc. Undated Response
to Agency's Motion for Summary Judgment at 1. On October 1, 1996,
complainant was moved to the Supply Division from the Alarm Maintenance
Division. Complainant was on light duty when he assumed this position.
Agency Statement of Material Facts Not in Dispute at 1. Upon assuming
the supply technician position, complainant's first-line supervisor,
S1, requested documentation from complainant regarding his medical
condition and restrictions. Complainant provided S1 with a note from
his doctor (D1), dated July 29, 1996, which stated that complainant
had a ruptured disc and was restricted from lifting any large object
or items weighing more than 25 pounds. Record of Investigation (ROI),
Exhibit 9. S1 thus allowed complainant to continue on light duty, in
accordance with his medical restriction. Some time later, S1 sought
to update complainant's documentation. Complainant told S1 he did
not have anything more than the July 1996 letter from his physician.
In January 1997 S1 wrote directly to complainant's doctors in an effort
to obtain current information. ROI, Ex. 13. D1 did not respond to S1's
inquiry. S1 also wrote to another one of complainant's doctors (D2),
who informed S1 that complainant had not been seen since October 1996
and he therefore could not evaluate complainant's current condition.
Based on this information, S1 issued a memorandum dated March 10,
1997, returning complainant to full status, effective March 16, 1997.
S1 did not actually return complainant to full status, however, as
complainant provided a note, dated March 11, 1997, from D1 recommending
that complainant remain on light duty due to his condition. D1 stated
on the March 1997 letter that he �still believe[s] that [complainant]
should not do any heavy lifting or bending . . . .� ROI, Ex. 10.
The March 10, 1997, memorandum also withdrew permission for complainant to
work a compressed schedule, citing an absence of medical documentation.
Further, according to the agency, permission was withdrawn because
complainant's attendance was sporadic, in contradiction of the compressed
schedule provisions. Agency Statement of Material Facts Not in Dispute
at 2. Complainant continued to work in a light duty status.
On April 15, 1997, complainant was issued another memorandum from
S1 indicating that the agency did not have any permanent light duty
positions. The memo further explained that there were no positions in the
OPS for which lifting was not an essential function, thereby concluding
that there was no position in the OPS that complainant was qualified to
do within his medical restrictions. S1 went on to state that, �[w]hile
I cannot accommodate you medical limitations in your current position,
I have determined that I can assign you to work on a special project
which will take approximately two weeks to complete.� ROI, Ex. 14.
S1 explained the project, including what duties were involved, and asked
complainant to have his physician review the requirements and indicate
whether complainant would be able to perform them. Id. S1 further
advised complainant to contact the Office of Human Resources (OHR) to
determine what options were available to him. Id. It appears from the
record that the agency began at this point to look for a position that
complainant was qualified to do, and was within his medical restrictions,
to which he could be reassigned.
On May 15, 1997, complainant met with S1 wherein he was issued a
Confirmation of Counseling memo for his (complainant's) failure to
work on the special project assigned to him. According to the agency,
complainant was to complete a data input project which he failed to do.
Complainant argued that he could not input the date because he did not
have a necessary password for the computer he was working on, however
S1 stated he was not aware of complainant's computer being password
protected.
On May 16, 1997, S1 and complainant's second-line supervisor, S2, were
asked to complete an appraisal of complainant for the Upward Mobility
Program to which complaint had applied. In response to several questions,
because they felt they had not observed complainant adequately to assess
his abilities in certain areas, both S1 and S2 checked the �not observed�
box on the appraisal form. Complainant was not accepted into the program.
On June 22, 1997, the agency informed complainant that it had located a
vacant, funded position that he was qualified to do and that was within
his medical restrictions. Complainant was thereafter transferred to
the position of Security Assistant for the National Museum of Natural
History on June 23, 1997.
On May 29, 1997, complainant contacted an EEO counselor and subsequently
filed a formal EEO complaint on August 21, 1997, alleging that the
agency had discriminated against him on the basis of disability (ruptured
disc) when:
he was issued the March 10, 1997 memo returning him to full duty status
and withdrawing permission to work a compressed schedule;
on April 15, 1997, he was issued a notice advising him that the agency
did not have any permanent light duty assignments;
on May 15, 1997, he was issued a memo confirming that he was counseled
for failure to work on assigned projects; and
on May 16, 1997, S1 forwarded an unfavorable appraisal of his work
performance to OHR in connection with complainant's application for
the Upward Mobility Program.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded, with regard to item one above, that this claim was
time-barred because complainant failed to timely seek EEO counseling.
The AJ further found that complainant was not rendered aggrieved by
items three or four. Finally, the AJ concluded with respect to item
two that summary judgment was appropriate because, despite the April
1997 memo, complainant was never actually returned to full duty status,
but was instead maintained in a light duty status until a position
within complainant's medical restriction which he could be reassigned
to was located. Moreover, the AJ found, as to items three and four
and the portion of item one addressing the compressed schedule issue,
that the agency articulated legitimate, non-discriminatory reasons
for its action which complainant failed to rebut as being pretextual.
The AJ declined to determine whether complainant was an individual with
a disability within the meaning of the Rehabilitation Act.
On appeal, complainant makes several arguments. Complainant first
contends that the July 29, 1996, letter from D1 was sufficient and
that he should not have been issued the March 10, 1997, memorandum.
He further disputes whether the agency did not have any permanent light
duty positions. Complainant also asserts that he did indeed complete
all his assignments on time, contrary to S1's statement. Finally,
complainant states as to item four that, �I have 20 years experience in
accounting and to be called an idiot is beyond comprehension.�
Complainant makes a separate argument in his appeal statement regarding
the reassignment accommodation he received. Specifically, complainant
argues that the new position of Security Assistant was not an effective
accommodation because it consisted of prolonged standing and walking up
and down a flight of stairs 20 to 30 times a day. He further argues
that the new position was a downgrade from his previous position.
Complainant states that after only a week in the Security Assistant
position he aggravated his ruptured disc and was required to use three
months of leave because the agency would not certify him for continuation
of pay. In response, the agency restates the position it took in its FAD,
and requests that we affirm its final order.
ANALYSIS
After a careful review of the record, the Commission finds that
grant of summary judgment was appropriate, as no genuine dispute of
material fact exists. Complainant is making an argument that he was
both disparately treated because of his impairment and was denied a
reasonable accommodation. For purposes of analysis, we will assume
complainant is a qualified individual with a disability.
With respect to item one, we concur with the finding of the AJ that this
claim is time-barred. Complainant became aware of the memo approximately
80 days prior to contacting an EEO counselor on the matter. Complainant
offers no explanation for the delay on appeal, nor did he proffer a
reason to the AJ. Thus, we find that the AJ properly dismissed item
one pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO contact.
With regard to item two, we further concur with the AJ's finding that
complainant was not aggrieved by this memorandum as complainant was never
actually put back into full duty status, but was maintained in a light
duty status until he was reassigned to the Security Assistant position.
Further, viewing complainant's argument of disparate treatment, we find
no evidence to support his contention that he was issued this letter
because of his impairment. S1 testified in his affidavit that he issued
the letter to complainant to acknowledge receipt of requested medical
information and to advise him that the agency did not permanent light
duty positions. Complainant offers no evidence to rebut this statement.
As to item three, we find that complainant was not disparately treated
by S1 when S1 counseled complainant and issued him a memo confirming the
counseling for failure to complete his assigned projects. Complainant
proffers no evidence in support of his assertions that he did indeed
complete his assignments. Thus, we find that complainant has not offered
any evidence to rebut the agency's legitimate, non-discriminatory reason.
Respecting item four, we also find that complainant cannot establish
that the reasons proffered by the agency for its action are a pretext,
masking a discriminatory animus towards complainant's protected status.
S1 and S2 stated that they checked several of the �not observed� boxes
on the appraisal form because of just that, they had not sufficiently
observed complainant in the areas asked about. This is not tantamount
to calling complainant an idiot, as he states on appeal. Quite the
contrary, the record demonstrates that, as to the remaining categories,
complainant was rated as satisfactory or above by S1 and S2. Thus,
the appraisal was positive in some respects and neutral in others.
Complainant offers no evidence to support his contention that the
neutral portions were rated as such because of his disability. Further,
complainant offers no evidence that S1 or S2 were not truthful in their
evaluation. Accordingly, we find that complainant was not discriminated
against based on the appraisal form filled out by S1 and S2.
Moreover, after a careful review of the record, we find that complainant
failed to proffer evidence that the agency actions in question here
demonstrate that he was not provided a reasonable accommodation or that
he required to perform outside of his medical restrictions.
Finally, we concur with the conclusion of the AJ to decline to
address complainant's contention that the reassignment position
was not an effective accommodation. It is undisputed that the only
medical restriction for complainant known to the agency at the time
of his reassignment was that of lifting more than 25 pounds. The AJ
found in her decision that complainant did not raise the issue of his
dissatisfaction with the duties of the Security Assistant position in
his formal complaint, nor was the issue accepted for investigation.
Thus, the AJ determined that the issue of whether the reassignment was
an effective accommodation was not properly before her for adjudication.
See AJ Decision at n.1 and 4. The AJ properly advised complainant of
the procedures to follow if he wanted to pursue this issue.<2>
We find that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes.
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
August 14, 2002
__________________
Date
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.
2 We note that complainant did in fact file a formal complainant
raising this and other issues. An appeal is currently pending before
the Commission on that complaint. See West v. Smithsonian Institution,
EEOC Appeal No. 01A22912 (decision pending).