0520090689
12-10-2009
Cary D. Cunningham, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
Cary D. Cunningham,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Request No. 0520090689
Appeal No. 0120081093
Hearing No. 430-2007-00112X
Agency No. DFAS-IN-CP-06-044
DENIAL
Complainant timely requested reconsideration of the decision in Cary
D. Cunningham v. Department of Defense, EEOC Appeal No. 0120081093
(August 27, 2009). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In the appellate decision, complainant alleged that he was discriminated
against on the bases of race (African American), sex (male),
disability (Schizophrenia), and age (57) when on March 28, 2006,
he was removed from federal service. An EEOC Administrative Judge
(AJ) issued a decision without a hearing finding no discrimination.
The AJ found that complainant failed to establish that the responsible
agency officials were aware of his disability or that the agency's
legitimate, nondiscriminatory reasons for his removal were a pretext
for unlawful discrimination. The agency fully implemented the AJ's
finding of no discrimination. The Commission agreed with the finding of
no discrimination. The Commission found that, even assuming arguendo
that complainant established a prima facie case of discrimination, the
agency had articulated a legitimate nondiscriminatory reason for its
action; namely, that complainant was terminated during his probationary
period because "he was unable to perform his normal work duties."
Coworkers reported that complainant was observed "slurring his speech and
stumbling, his eyes were watery and reddish, his hands were shaking, and
when he stepped close I could smell alcohol." It was also believed that
complainant had appeared inebriated at work in the past. The Commission
found that complainant failed to establish that the articulated reasons
were pretext for discrimination.
In his request for reconsideration, complainant contends that his
mumbling/slurred speech and unsteadiness on his feet were long-standing
side effects of his medication for schizophrenia. Complainant contends
that agency officials were told by his supervisor that complainant's
behavior could have been due to a medical condition or mental health
problem. Complainant contends that the agency was under a duty to
inquire as to whether a disability was at issue. He maintains he was
treated differently because of his disability. Complainant argues that
whether complainant was intoxicated or was suffering from a disability
creates a genuine issue of material fact.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The Commission finds that complainant failed to show
that the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
agency. The Commission finds that no genuine issues of material fact
exists because the record shows that the managers involved with his
removal were not aware of complainant's medical condition or that he was
on medication. The record shows that the manager that sent complainant
home believed that complainant was intoxicated. Further, the Commission
finds that the vague statements of the supervisor that complainant's
condition might be attributable to "something else" besides inebriation
were insufficient to impute knowledge of complainant's existing medical
condition to the agency or trigger a duty to inquire. Additionally,
we note that the supervisor that made the statement that complainant's
behavior could have been due to a medical condition or mental health
problem was not at work to assess the situation on March 17, 2006,
and she was not involved in the processing of complainant's removal.
Accordingly, we find the decision in EEOC Appeal No. 0120081093 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 10, 2009
Date
2
0520090689
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520090689