01981572
05-10-2001
Alvino V. Reyes, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Alvino V. Reyes v. Department of the Interior
01981572
May 10, 2001
.
Alvino V. Reyes,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01981572
Agency No. FNP-96-117
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. Complainant alleged that he was
discriminated against based on disability (cerebral palsy) and retaliation
(prior letter from complainant's attorney to agency regarding potential
Rehabilitation Act claim) when: (1) he was not placed in a park area
following participation in the Service Intake Trainee Program and his
fellow classmates were placed in parks; (2) he has not received any
details or out-of-the-office training opportunities since October 1, 1994;
and (3) management officials have put the responsibility of complainant's
placement in a park on him rather than on the agency.
The record reveals that complainant entered the National Park Service
Intake Trainee Program ("program") in June 1991. During the program,
he was given training assignments as a Personnel Management Specialist
at both Redwood National Park and the Midwest Field Area, Great Plains
Systems Support Office, in Omaha, Nebraska. Following completion of
the program in May, 1994, he was assigned to the Midwest Field Area as
a Personnel Staffing Specialist. Complainant sought EEO counseling and
subsequently filed a formal complaint on September 6, 1996 raising the
three claims referenced above. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that is a qualified individual with
a disability, and engaged in prior protected activity. However, it
further found that he was not subject to an adverse action with respect
to his placement in the Midwest Field Area office rather than in a park,
and therefore did not establish a prima facie case of discrimination or
reprisal with respect to claim (1). With respect to claim (2), the FAD
similarly found that complainant was not subject to an adverse action
because the evidence established that there were training opportunities
offered but he chose not to take advantage of them because they were
in fields outside his areas of interest and because he felt the writing
requirements would be too difficult for him, and further that no specific
request for or denial of a detail occurred. With respect to claim (3),
the FAD concluded that the evidence did not establish a continuing duty
on the part of management to continuously seek a second placement for
complainant after he accepted his placement in the Midwest Field Area,
and further that, in any event, complainant had not demonstrated that,
more likely than not, the agency's actions and inaction complained
of was motivated by complainant's disability or in reprisal for prior
protected activity.
Complainant has not submitted contentions on appeal. The agency requests
that we affirm its FAD.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) he is an
"individual with a disability"; (2) he is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise
to an inference of discrimination. Lawson v. CSX Transportation,
Inc., 2001 WL 292999, F.3d (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, and Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1) she
engaged in a protected activity; (2) the agency was aware of her protected
activity; (3) subsequently, she was subjected to adverse treatment<2>
by the agency; and (4) a nexus exists between the protected activity
and the adverse action. Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000).
In analyzing the merits of complainant's claims, we do not reach the
issue of whether or not the FAD correctly concluded that complainant
is a qualified individual with a disability within the meaning of
the Rehabilitation Act. Rather, we find that even assuming arguendo
complainant is a qualified individual with a disability, and assuming
arguendo complainant established a prima facie case of disability
discrimination or retaliation, complainant has not demonstrated
by a preponderance of the evidence that the agency's articulated
reasons for its actions and inactions complained of were a pretext for
disability discrimination or reprisal. In reaching this conclusion,
we note that complainant does not rebut the agency's evidence that the
other program graduates to whom he seeks to compare himself were in a
variety of different occupational series, and thus unlike complainant,
were not all searching for positions in personnel staffing. Moreover,
as complainant himself concedes, he was seeking a position consisting
primarily of classification duties, thereby ruling out potential
assignment to park locations with only one personnel manager who had
to handle all personnel duties. In addition, although at least one
affiant stated that he had not heard about any budgetary constraints,
this is insufficient to establish that the other affiants' budgetary
explanations for the limited number of assignments available were false
and a pretext for discriminatory or retaliatory motive. Finally, with
respect to training and detail opportunities, complainant concedes that
the agency made numerous such opportunities made available to employees,
but that he did not avail himself of any because the offerings were not
in his area of interest.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 10, 2001
__________________
Date
1The 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.
2The Commission interprets the statutory retaliation clauses "to prohibit
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity." EEOC Compliance Manual, Section 8 (Retaliation)
at 8-13 - 8-14 (May 20, 1998).