01982735
07-24-2000
Brian Cote, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency,
Brian Cote v. Department of the Navy
01982735
July 24, 2000
Brian Cote, )
Complainant, )
) Appeal No. 01982735
v. ) Agency No. 96-00158-004
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency, )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning his allegation that the agency violated the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented herein are whether the complainant has established
that he was discriminated against based on physical disability
(hemochromatosis) when: (1) he was wrongfully cited for poor work
performance during a detail in April 1995; (2) he was denied the use of a
stool; (3) he was not informed of his right to rebut a letter of removal;
(4) his request for medical leave was denied on October 31, 1995; and
(5) he was terminated on November 2, 1995.
BACKGROUND
The complainant filed a formal complaint in July 1996 in which he raised
the issues identified above. Following an investigation, the complainant
did not request an administrative hearing and the agency issued a
final decision (FAD) dated January 21, 1998, finding no discrimination.
It is from this decision that the complainant now appeals.
In March 1994, the complainant was hired for the position of Visual
Merchandiser at the Naval Air Station in Willow Grove, Pennsylvania.
In that capacity, the complainant was required to assist in the manner
in which items for sale in the station's Naval Exchange (NEXCEN) were
both marketed and displayed. In September 1994, the complainant was
issued his six-month appraisal and received a rating of �Fair,� the
fourth-lowest of five possible ratings. According to the appraisal,
the complainant demonstrated �little initiative to start and complete
tasks without being told,� and it states that there had been several
instances when the complainant, despite having been told to perform a
particular task, had not done so. The appraisal states further that
the complainant's quality of work was �not acceptable.�
Although the complainant's supervisor debated terminating him at the
end of his one-year probationary period, the record reveals that a
new individual (Responsible Official 1, RO 1) became his supervisor at
that time. According to RO 1, although the complainant's performance
was not satisfactory, he believed that he should be retained based on his
artistic ability. He testified further that he believed the complainant's
poor performance was based, in part, on not having received sufficient
guidance from his first supervisor.
In April 1995, the complainant was detailed to Little Creek, Virginia,
where a new store was being organized. The complainant's duties during
the detail required him to work 12-hour shifts, and he noted that,
as a result of standing for excessive periods, he began having pain in
his legs. The complainant testified that he informed his supervisor
(RO 2) about the problem and was told that, if he �needed to take a
rest,� he should do so. RO 2 confirms that such an exchange took place,
but she noted that the complainant, rather than simply take breaks,
would disappear for up to 30 minutes at a time. In this regard, RO 2
stated that she looked for the complainant on one occasion and found him
reading a book and smoking a cigarette. According to RO 2, this was not
an uncommon occurrence and she noted that other employees complained
about the complainant taking extended breaks. RO 2 testified that,
because the complainant was not productive, he was sent back to Willow
Grove prior to the scheduled end of his detail.
The complainant saw a physician following his return and was diagnosed
with hemochromatosis, a condition which, as he described it, is one in
which excess iron accumulates in the blood. As a result, the complainant
was required to have his blood drawn once a week. Although the medical
reports submitted by the complainant are general in nature and do not
set forth any limitations related to his condition, some of the reports
state that the condition had resulted in arthritis. According to the
complainant, the arthritis was in his legs, and he stated, �The pain would
be consistent through the day. If I stood for 5 or 10 minutes, it hurt.
Longer periods of time it would get to the point where I could not work.
I felt fatigued.� The complainant also testified that having his blood
drawn made him fatigued.
In June 1995, the complainant was issued a Letter of Requirement based
on unsatisfactory work performance. The Letter cites four problems
with the complainant's performance, including failing to maintain a neat
and orderly storage area for visual merchandising fixtures; failing to
follow-up on supplies that had been ordered; failing to maintain a Fact
Tag program to provide distinctive tags in identifying retail price and
product information; and failing to maintain a merchandising program in
the softlines departments consistent with a rack management system.
The LOR states that the complainant's performance would have to improve
in these four areas, and that, unless he showed significant improvement,
formal action for unsatisfactory performance could be taken against him.
The complainant states that, at the time he received the Letter of
Requirement, he asked RO 1 for several months of leave to address his
medical condition. According to the complainant, this request was denied.
In response, RO 1 acknowledged that he denied the request, but noted that
the complainant never told him that the request was for medical reasons.
Rather, he explained that the complainant told him the request was to take
care of personal business related to both his newly-purchased house and
a business he had painting signs. RO 1 testified further that, although
the complainant mentioned having been diagnosed with hemochromatosis,
he did not tell him that he had pain in his legs and/or that he was
having problems performing his duties.
Over the next several months, the complainant's performance did not
improve, and though he has attributed his continuing problems to his
physical condition, he has offered few details regarding how particular
duties were impacted by his condition. The complainant also admitted
that he never asked for an accommodation to help him perform his duties.
He did, however, cite an incident that occurred in August 1995 when
he was told by RO 1 that he could not use a stool while working in
the aisles of the store.<2> In response, RO 1 testified that, on two
occasions, he found an abandoned stool in the aisles of the store.
When RO 1 learned that the stool had been used by the complainant, he
informed him that he could not use it in the aisles while the store was
open because it constituted a safety hazard. RO 1 also testified that
it was unclear to him why the complainant needed the stool, explaining:
You have to understand that his job did not require him to be in one place
for extended times ... He would spend time to put signs up after he
made them, and this would take minutes ... The biggest thing we needed
him to do with his job was to make signs for sales, make fact tags,
and shelf talkers ... This was done on the computer. He spent very
little of his time on display. Of all his talents he would not try to
apply himself to setting up shelves. This would have been something
that would have required him to stand for extended periods of time.
We took these functions away almost from the start.
The complainant was issued his annual Work Performance Review (WPR)
from RO 1 on September 23, 1995, and received an overall rating
of �Fair.� What is apparent from the record is that, of the seven
elements that comprised the rating, the complainant received a rating of
�Unsatisfactory� on four of them, including �Quality� and �Quantity.�
The WPR cites a number of problems with the complainant's performance,
including his continued lack of initiative, and states that he had
problems finishing tasks in a timely manner. The WPR states further that,
with regard to creating signs and tags, the complainant misspelled words
and listed both wrong merchandise and improper prices.
Shortly before the issuance of the WPR, a new individual (RO 3) became
the complainant's second-level supervisor, and she testified that one
of her initial tasks was to meet with each employee to discuss his/her
performance. RO 3 met with the complainant on September 28, 1995,
and, having been apprised of his problems, informed him that the Letter
of Requirement issued in June 1995 was still in effect. RO 3 testified
that, during the meeting, she asked the complainant to submit a plan
regarding things that could be done to improve the store, as well as
what he could do to improve as a Visual Merchandiser. According to
RO 3, the complainant �submitted a very general conceptualization of
issues relating to improvements, but no plan.� RO 3 held subsequent
counseling sessions with the complainant on two occasions in October
1995, but she noted that, as of mid-October, no progress had been made
regarding what they had discussed. In particular, RO 3 explained that
the complainant had not produced any fact tags, had not cleaned out the
upstairs, and had not produced any signs. She testified further, �If
he had done something, like the signs, I would have been able to keep
him on. But he did nothing. He could have printed the fact tags up
and have somebody put them up. These functions are done on a computer
where no standing is required.�
On October 20, 1995, the complainant was issued a notice of proposed
removal (NPR). The NPR cites several factors in support of that action,
including the failure to maintain an orderly and organized storage area,
failure to timely complete projects he had proposed, and failure to
satisfactorily complete projects assigned to him. In response, the
complainant submitted a statement dated October 30, 1995, in which he
explained the nature of his physical condition and attributed his poor
performance to the pain in his legs and his chronic fatigue. He stated
further that he could no longer perform his duties without an improvement
in his physical status, and, in this regard, requested two to three months
of leave to allow his condition to improve. The complainant noted, finally,
�In hindsight this is an action I should have done months ago that would
have prevented the slow decline of my recent unsatisfactory history of poor
and inconsistent work performance.�
By letter dated November 2, 1995, the RO 3 informed the complainant
that she had reviewed his rebuttal and found it insufficient to alter
the decision to terminate him. In particular, RO 3 stated that, given
the absence of medical information, the complainant's assertion that
his problems were related to his physical condition was unsupported.
She stated further, �You have failed to complete the simplest tasks such
as changing a display every 10 days. You've claimed spending up to a
day and a half to complete a store flier, when you've simply listed
line items in succession, which displays no demand of creativity or
ingenuity ... You have failed to establish a fact tag program leaving
two significant departments poorly merchandised and presented.�
ANALYSIS AND FINDINGS
To establish a prima facie case of disability discrimination under
a disparate treatment and/or a failure to accommodate theory, the
complainant must demonstrate that: 1) he is an �individual with
a disability� as defined in 29 C.F.R. � 1630.2(g);<3> 2) he is
a �qualified individual with a disability� as defined in 29
C.F.R. � 1630.2(m); and (3) he was subjected to an adverse personnel
action under circumstances giving rise to an inference of disability
discrimination and/or denied an accommodation. See Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981). An �individual
with a disability� is defined as someone who: (1) has a physical or
mental impairment which substantially limits one or more of such person's
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)(1)-(3).
�Major life activities� include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i).
In the present case, the medical documentation submitted by the
complainant supports a finding that he was diagnosed with hemochromatosis,
and that, as a result of that condition, he developed
arthritis in his legs. Although this evidence did not elaborate on the
symptoms and/or limitations related to the condition, the complainant
testified that his legs would hurt if he stood for five or ten minutes,
and that, if he stood for longer periods of time, he would be unable to
work. The Commission finds that this testimony is sufficient to conclude
that, as a result of the arthritis related to his hemochromatosis,
the complainant was substantially limited regarding his ability to
stand and walk. Accordingly, we conclude that the complainant is an
�individual with a disability.�
Having shown that he is an �individual with a disability,� the complainant
must demonstrate that he is a �qualified individual with a disability,�
i.e., one who, with or without reasonable accommodation, can perform
the essential functions of his position. The complainant must also
establish a nexus, or causal relationship, between his disability
and the performance problems that resulted in his removal. See Lynch
v. Department of the Army, EEOC Petition No. 03950128 (September 7,
1995). In considering that question, the Commission is not persuaded
that there is a connection. In so finding, we initially note that a
majority of the complainant's duties were sedentary, and, in this regard,
he has not explained why his standing limitations rendered him unable to
perform those duties in a satisfactory manner. Furthermore, although the
complainant testified that he first experienced symptoms in April 1995,
his six-month evaluation indicates that his performance problems date back
to his hiring in March 1994. As noted, that evaluation states that the
complainant demonstrated little initiative, did not complete projects,
and that the quality of his work was not acceptable. These problems,
particularly the lack of initiative, are essentially the same as the ones
that resulted in the complainant's removal.<4> Based on the foregoing,
the Commission finds that the complainant has not established a connection
between his performance problems and his disability. For that reason,
and because the complainant never demonstrated that he was capable of
satisfactorily performing the duties of his position, we find he is not
a �qualified individual with a disability.� Accordingly, we find the
complainant is unable to establish that he was discriminated against
based on his disability.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that he was discriminated against as
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
07-24-00
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
02 The extent to which the use of the stool was necessitated by
the complainant's condition is not entirely clear, and one co-worker
testified that the complainant had used the stool even before developing
physical problems.
03 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.
Since that time, the ADA regulations set out at 29 C.F.R. Part 1630
apply to complaints of disability discrimination. These regulations
can be found on EEOC's website: www.eeoc.gov.
04 The Commission is cognizant that the complainant was retained
following his one-year probationary period. We also find sufficient
evidence to conclude, however, that the reason was not because his
performance was satisfactory, but, rather, because RO 1 believed that
the complainant was a talented individual whose poor performance to that
point was the result of a lack of supervision by his first supervisor.