01996811
04-16-2002
Berlin Nero, Jr., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Berlin Nero, Jr. v. Department of the Air Force
01996811
04-16-02
.
Berlin Nero, Jr.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01996811
Agency No. 9V1M99006
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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on disability when he was denied overtime.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Sheet Metal Mechanic (Aircraft), WG-10, at the agency's Tinker AFB,
Oklahoma facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on November 16, 1998, alleging that he was
discriminated against on the basis of disability (seizure disorder and
chronic shoulder pain) when, from September 20, 1996 through September
15, 1998, he was denied overtime. The agency accepted the complaint for
investigation and processing. 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 it was �uncertain� whether
complainant had established a prima facie case of disability
discrimination because while the record was clear that complainant
had conditions that were permanent and physically restrictive, it
was less clear that complainant was substantially limited in a major
life activity. The agency found it did not need to determine whether
complainant had established a prima facie case by showing that he was
an individual with a disability because management had articulated
legitimate, nondiscriminatory reasons for its actions. It concluded
that complainant had not shown management's reasons to be pretext
for discrimination and found that he had not shown that he had been
discriminated against as claimed.
Complainant filed this appeal, without comment. The agency requested
that we affirm its FAD.
ANALYSIS AND FINDINGS
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 Board 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).
Assuming arguendo that complainant established his prima facie case
of discrimination,<1> we turn to the issue of whether the agency has
articulated legitimate, nondiscriminatory reasons for its actions.
Complainant's supervisor (S-1) testified that during the relevant time
period, complainant had medical restrictions which specified that he
was restricted from working �protracted and/or irregular hours,� among
numerous other restrictions. This meant that complainant was not able
to work overtime hours. On September 15, 1998, S-1 was absent from work
and an acting supervisor was in his place. The acting supervisor was
unaware of this restriction for complainant and he asked complainant if
he wished to work overtime. Complainant answered that he did, and was
permitted to work overtime. When S-1 returned he questioned complainant
about the overtime, and inquired whether he suffered any adverse effects.
Complainant answered that he had not and stated that he wished to work
more overtime. S-1 asked about complainant's medical restrictions, and
he testified that complainant replied that he �could get them changed.�
Complainant was allowed to keep working overtime and approximately one
and one-half months later, he provided medical documentation changing
his restrictions.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to do so. Complainant testified in
his affidavit that he had the same medical restrictions from September 20,
1996, through September 15, 1998, as he did when the agency allowed him
to work overtime after September 15, 1998. He claimed that because he
had no difficulty performing that overtime work, this was contrary to what
management had told him regarding the previous two years, that his medical
restrictions precluded him from performing overtime work. He stated,
�[t]his shows that management should have allowed me to work overtime
prior to September 15, 1998.� We find that, contrary to complainant's
belief, this does not show that the agency discriminated against him.
The agency acted in accordance with the medical restrictions on file
from complainant's own physicians, and complainant did not show that
the agency was mistaken in its belief that he was restricted in this
manner. In fact, complainant complied with the agency's request for new
documentation stating that he could work overtime, which shows that he
did not dispute that his documentation on record at the time reflected
a restriction on overtime. Therefore, the agency's determination that
complainant failed to establish that he was discriminated against was
correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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
___04-16-02_______________
Date
1 We will assume without finding, for the purposes of analysis only,
that complainant is an individual with a disability.