01980741_01983679
07-27-2001
Keith McGoy, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Keith McGoy v. Department of Justice
01980741; 01983679
July 27, 2001
.
Keith McGoy,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal Nos. 01980741
01983679
Agency Nos. P-94-8552
P-95-8682
DECISION
Complainant timely initiated his appeals from final agency decisions
(FAD) concerning his complaints 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. The appeals are accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that he was
discriminated against:
(1) in Appeal No. 01980741, on the basis of disability (back injury)
when he was ordered to pick up television sets on July 21, 1994;
when management refused to honor notes from his physician recommending
accommodation; and when he was not allowed to enter the Bureau of Prisons
(BOP) building in August 1994, because he did not have a medical note
allowing him to work without restrictions; and
(2) in Appeal No. 01983679, on the bases of disability (back injury)
and reprisal (prior EEO activity) when he was verbally abused by his
supervisor and terminated from his position.
The record reveals that during the relevant time, complainant was
employed as a Senior Correctional Officer at the agency's BOP Metropolitan
Correctional Center in New York, New York. Complainant was injured in
an automobile accident and incurred a back injury on March 23, 1994.
Complainant claimed that he met with the Associate Warden on April 3,
1994, to request that he be put on �light duty� status. Complainant
stated that the Associate Warden told him that he should take off for two
or three months rather than discussing any accommodation. Complainant
indicated that he returned to the Associate Warden on April 4, 1994, to
discuss accommodation options. The Associate Warden informed complainant
that he would not be able to return to work without a letter allowing
him to return to full duty without restrictions. The record indicates
that complainant returned to work in July 1994, as a full duty employee.
On July 21, 1994, complainant was assigned to the Attorney Conference
Area and allegedly was ordered by the Operations Lieutenant to move two
thirteen inch television sets. Complainant claims that he complied with
the order and re-injured his back. Complainant was again on sick duty
and on July 25, 1994, he provided the agency with another request for
light duty as a reasonable accommodation. Complainant contends that
the Associate Warden again stated that he would not permit him to work
light duty. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed his first formal complaint
on September 25, 1994. On November 16, 1994, complainant received a
notice ordering him to return to duty. Thereafter, the Captain contacted
complainant by phone to tell him to return to work. When complainant
failed to appear, on December 19, 1994, complainant received a letter
from the Captain proposing his termination since he had been on Absence
without Leave status since November 16, 1994 and failed to provide medical
documentation showing that he was unable to return to work. On January
25, 1995, complainant received a termination letter from the Warden for
�excessive unauthorized absence and for failure in carrying out an order.
Based upon the incidents after his initial complaint, complainant filed a
second complaint of discrimination on March 31, 1995. At the conclusion
of the investigations, 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 for each complaint. When complainant failed
to respond within the time period specified in 29 C.F.R. � 1614.108(f),
the agency issued its final decisions.
In FAD(1) regarding Appeal No. 01980741, the agency concluded
that complainant did not establish a prima facie case of disability
discrimination in that he did not show that he was an individual with
a disability as defined by the Rehabilitation Act. The agency found
that although complainant claimed that he suffered from a disability,
the record did not support complainant's assertion. Based upon the
medical documentation, the agency determined that complainant suffered
from a temporary condition which did not qualify him as disabled under
the Rehabilitation Act. The agency also noted that complainant failed
to show that he was regarded as having a disability or had a record
of a disability under the Rehabilitation Act. Accordingly, the agency
concluded in FAD(1) that his claim of disability discrimination failed.
In FAD(2) regarding Appeal No. 01983679, the agency concluded that
complainant failed to establish his claim of discrimination based on
disability and/or reprisal. Initially, the agency concluded that
complainant's condition did not constitute a disability under the
Rehabilitation Act. As to complainant's claim that he was verbally
abused by the Captain, the agency found that the incident was not
severe or pervasive enough to create a hostile work environment
actionable under the Rehabilitation Act. The agency then determined
that complainant was not terminated based on a discriminatory animus
towards his alleged disability. Upon review of the record, the agency
concluded that complainant was terminated because he failed to provide
agency management officials with medical documentation and keep them
informed about his condition. Finally, as to complainant's claim that
the termination was based on retaliation for filing an EEO complaint in
September 1994, the agency found that complainant failed to substantiate
his claim. The agency determined that the Captain provided justification
for his action, namely that complainant was ordered to provide medical
documentation and his refusal to furnish it meant that his absence
from work from November 1994 was AWOL. The agency then concluded that
complainant failed to show that the agency's reasoning was pretext for
unlawful retaliation. Accordingly, the agency issued is FAD(2) finding
no discrimination.
Complainant appealed FAD(1) and FAD(2) to the Commission without
comment.<1> The agency requests that we affirm its FAD.
Reasonable Accommodation
In complaint (1), the crux of complainant's claims is that the agency
failed to provide him with a reasonable accommodation when he was not
allowed to return to work in a �light duty� capacity. In complaint (2),
complainant indicates that he was terminated based on the agency's failure
to provide him with light duty and he would only be allowed to return
to the BOP facility when he had a note from his physician indicating
he had no restrictions. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical and
mental limitations of a qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship. 29
C.F.R. � 1630.2(o); 29 C.F.R. � 1630.2(p). The Commission also notes
that an employee must show a nexus between the disabling condition and
the requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22,1997).
Initially, we must reach a threshold determination as to whether
complainant falls within the protection of the Rehabilitation Act, i.e.,
that he is an individual with a disability under the Rehabilitation Act.
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. � 1630.2(i).
Upon review of the record, the Commission finds that complainant was
injured in March 1994. Based upon the medical evidence in the record, it
appears that he suffered a straightening of the lumbar lordotic curvature
due to the injury. Complainant also provided notes from his physicians
indicating that he had spasms and strains in his spine and that he
should be placed on light duty for the duration of his physical therapy.
The record, however, does not provide any specific information as to
how the straightening of his lumbar lordotic curvature substantially
limits a major life activity. Based upon a review of the record in
both complaints (1) and (2), the Commission finds that complainant has
failed to demonstrate that he is an individual with a disability within
the meaning of the Rehabilitation Act. Accordingly, we find that his
claims in complaints (1) and (2) that the agency failed to provide him
with �light duty� as a reasonable accommodation fail.
The Commission notes that, for the reasons state above, complainant failed
to establish a prima facie case of disability discrimination in that he
failed to show that he is an individual with a disability as defined by
the Rehabilitation Act. For the purposes of analysis on the remaining
issues raised in complaint (2), we will assume that complainant has met
his burden.
Disparate Treatment
In complaint (2), complainant alleged a claim of disparate treatment
based on disability and reprisal when the agency terminated him. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency has met it burden of articulating
a legitimate, nondiscriminatory reason for its action, namely that
complainant was ordered by the Captain to provide medical documentation
to keep the agency aware of his medical status. The agency indicated
that when complainant failed to respond to the request made by the
Captain, it issued him a notice of proposed removal on December 19, 1994.
Complainant did not respond to the notice and, accordingly, the Warden
issued a termination letter to complainant which became effective at
midnight on January 30, 1995. The burden returns to complainant to show
that the agency's reasoning was motivated by a discriminatory animus.
The Commission finds that complainant failed to do so. Accordingly, the
Commission finds that complainant failed to establish by a preponderance
of the evidence that the agency's action was motivated by discrimination.
Harassment
Complainant also alleged in complaint (2) that he was subjected to
harassment when the Captain verbally abused him. It is well-settled that
harassment based on an individual's disability and/or prior EEO activity
is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
In order to establish a claim of harassment under those bases, the
complainant must show that: (1) he belongs to the statutorily protected
classes and/or engaged in prior EEO activity; (2) he was subjected to
unwelcome conduct related to his membership in those classes and his
prior EEO activity; (3) the harassment complained of was based on his
disability and/or prior EEO activity; (4) the harassment had the purpose
or effect of unreasonably interfering with his work performance and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
As to the claim that complainant was discriminated against when
the Captain allegedly verbally abused him, the Commission finds
that complainant failed to establish that the incident was unlawful
harassment. In particular, we note that the single incident, assuming it
had occurred as complainant alleged, did not interfere with complainant's
work performance nor did it create an intimidating, hostile, or offensive
work environment. Accordingly, the Commission finds that complainant
failed to demonstrate that the alleged incident was unlawful harassment.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
July 27, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The Merit Systems Protection Board (MSPB) has jurisdiction over mixed
case complaints which allege discrimination based, among other things,
on disability with regard to terminations. See 5 C.F.R. � 1201.3.
The agency's final decision provided appeal rights to the EEOC, not
the MSPB. Since the complainant's complaint has been pending in the
EEO process for several years and did not request a hearing before an
Administrative Judge, the Commission will assume jurisdiction over his
case. The complainant's complaint is firmly enmeshed in the EEO forum,
and it would better serve the interests of judicial economy to address
his complaint at this time rather than remand it for consideration to
the MSPB process. See Burton v. Department of Agriculture, EEOC Appeal
No. 01932449 (October 28, 1994).