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.