David A. Williams, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 13, 2002
01A10504 (E.E.O.C. Sep. 13, 2002)

01A10504

09-13-2002

David A. Williams, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


David A. Williams v. Department of the Navy

01A10504

September 13, 2002

.

David A. Williams,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A10504

Agency No. 99-00207-004

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. For the following reasons, the

Commission affirms the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Firefighter at the agency's Naval Air Station in Jacksonville,

Florida. In this facility, the shifts run 24 hours on, 24 hours off.

On April 23, 1999, complainant presented a doctor's note indicating that

he should avoid lifting heavy objects for 10 days. The note placed no

limitations on the number of hours complainant could work. Based on

this note, complainant was placed on light duty answering phones, but

was still required to work the regular 24 hour shift. On May 1, 1999,

complainant presented a second doctor's note stating that he should be

restricted to 8 hour shifts until May 6, 1999. Complainant's supervisor

(FC), however, declined to honor this restriction and instead required

complainant to either work the full shift or take leave.<2> Thereafter,

complainant sought EEO counseling and subsequently filed a formal

complaint on June 1, 1999, alleging that he was discriminated against on

the bases of disability (bleeding ulcers) and in reprisal for prior EEO

activity when FC did not grant his request for a reasonable accommodation

of a reduction in shift hours between April 23, 1999, and May 6, 1999.

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 complainant established a prima

facie case of reprisal discrimination, but failed to rebut the articulated

reason proffered�no shift changes are granted for temporary medical

situations�as being a pretext masking discriminatory animus. With regard

to complainant's Rehabilitation Act claim, the agency concluded that

complainant failed to establish a prima facie case because he is not a

qualified individual with a disability. The complainant is silent on

appeal and the agency requests that we affirm its FAD.

ANALYSIS

Denial of Reasonable Accommodation

We turn first to the denial of complainant's request for a reasonable

accommodation. As a threshold matter, complainant must establish

that he is an �individual with a disability� within the meaning of

the Rehabilitation Act. An �individual with disability� is a person

who has, has a record of, or is regarded as having a physical or mental

impairment which substantially limits one or more of that person's major

life activities, i.e., caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

See, 29 C.F.R. � 1630.2(j). Complainant must next establish that

he is a qualified individual with a disability, as defined by the

Rehabilitation Act. EEOC regulations at 29 C.F.R. � 1630.2(m) define

�qualified individual with a disability� as �an individual with a

disability who satisfies the requisite skill, experience, education and

other job-related requirements of the employment position such individual

holds or desires, and who, with or without reasonable accommodation,

can perform the essential functions of such position.�

Under the Rehabilitation Act, an impairment is considered substantially

limiting when it prevents an individual from performing a major life

activity or when it significantly restricts the condition, manner, or

duration under which an individual can perform a major life activity.

29 C.F.R. � 1630.2(j). The individual's ability to perform a major

life activity must be restricted as compared to the ability of the

average person in the general population to perform the activity. Id.

Pursuant to 29 C.F.R. � 1630.9(a), an agency is required to make

reasonable accommodations for the known physical or mental limitations

of an otherwise qualified applicant or employee with a disability,

unless the agency can demonstrate that the accommodation would impose

an undue hardship.

Herein, the Commission concurs with the agency's determination that

complainant failed to establish a prima facie case of disability

discrimination. Specifically, we find that complainant has not presented

sufficient evidence to demonstrate that he is an individual with

a disability. The evidence of record includes complainant's doctor's

notes indicating that he has a bleeding ulcer and should be placed on

light duty with limited hours for a limited time, and a memorandum from

the agency's occupational health clinic which concurs with the doctor's

note placing complainant on light duty. There is no medical evidence in

the record to support the conclusion that complainant has an impairment

which substantially limits one or more of his major life activities.

Although complainant states in his affidavit that his disability affects

a �major life function by limiting [his] diet,� there is no medical

support in the record for this statement. Moreover, a limiting diet is

not equivalent to being substantially limited in the major life activity

of eating. �An impairment is substantially limiting if it significantly

restricts the duration, manner or condition under which an individual

can perform a particular major life activity as compared to the average

person in the general population's ability to perform that same major

life activity.� Interpretive Guidance on Title I of the Americans

With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(j). Further,

�temporary, non-chronic impairments of short duration, with little or

no long term or permanent impact, are usually not disabilities.�<3> Id.

Therefore, complainant was not entitled to the reasonable accommodation

of working 8 hour shifts for the time recommended by his physician under

the Rehabilitation Act.<4>

Reprisal

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) he engaged

in a protected activity; (2) the agency was aware of his protected

activity; (3) subsequently, he was subjected to adverse treatment by

the agency; and (4) a nexus exists between the protected activity and

the adverse treatment. Whitmire v. Department of the Air Force, EEOC

Appeal No. 01A00340 (September 26, 2000).

The Commission finds that complainant established a prima facie

case of reprisal discrimination, in that he served as a witness in

another employee's EEO complaint on January 25, 1999, his supervisors,

including the FC, were aware of this participation, and the amount of

time between complainant's protected activity and the denial of his

request was sufficient to infer a nexus. See Whitmire, EEOC Appeal

No. 01A00340 (September 26, 2000) (nexus is apparent because the agency

action closely followed complainant's participation in a protected

activity by approximately four months). Complainant has failed,

however, to present evidence that more likely than not, the agency's

articulated reasons for its actions were a pretext for discrimination.

In reaching this conclusion, we note that there is no evidence that

the FC's decision to deny complainant's request was motivated by a

discriminatory animus. Complainant argues that another employee (CW)

without prior protected activity was permitted to work an 8 hour shift.

The FC explained, however, that CW's �medical situation� was permanent in

nature, which is why he granted CW's request to work a modified shift.

FC reiterated that complainant's �medical situation� was temporary

in nature and that's why he declined to grant complainant's request.

Complainant has not shown this reason to be pretextual.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we affirm the FAD.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

September 13, 2002

__________________

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 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.

2 The FAD states that complainant was offered the option of taking

leave without pay, annual leave, or sick leave.

3 We note that complainant returned to full duties status after 2 weeks.

4 This finding notwithstanding, we direct the agency to our guidance on

processing requests for reasonable accommodations. The Commission notes

that in submitting a statement from his physician, concerning additional

medical restrictions, complainant was requesting reasonable accommodation

insofar as he was informing his employer that he needed an adjustment at

work for a reason related to a medical condition. See EEOC Enforcement

Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

With Disabilities Act (March 1, 1999) at question 1. After receiving such

a request, the agency should engage in an informal process, which includes

determining whether the individual is an individual with a disability as

defined by the Rehabilitation Act, to clarify what the individual needs

and identify the appropriate reasonable accommodation. Id. at question 5.