01984996
08-21-2002
Edward B. Garcia, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Edward B. Garcia v. Department of the Air Force
01984996
August 21, 2002
.
Edward B. Garcia,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01984996
Agency No. LAOJ96071
Hearing No. 360-97-8048X
DECISION
INTRODUCTION
Edward B. Garcia (complainant) timely filed an appeal with the Equal
Employment Opportunity Commission (the Commission) from a final agency
decision (FAD) dated May 26, 1998, concerning his claim of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq., and � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the bases of age, disability, and reprisal
with respect to being denied an opportunity to return to work following
a period of leave, a medical disqualification determination, and not
receiving compensation or notification of his medical disqualification.
BACKGROUND
Complainant initially was employed by the agency as a Sheet Metal
Mechanic, WG-3806-05, on August 8, 1971. In November 1988, he suffered
an on-the-job injury and was granted leave without pay (LWOP) until
his return to duty on August 19, 1991, when he was detailed as a Supply
Clerk to accommodate his physical restrictions. Complainant was again
granted LWOP in March 1992, returned to duty in November 1992, and
was subsequently detailed to the Facility Maintenance Control Clerk
for light duty. In August 1993, complainant was detailed to the Work
Controller position, GS-0303-04, a light-duty position intended to
accommodate his physical restrictions.
In March 1995, complainant presented his supervisor (S-1) with a
work restriction evaluation from his psychiatrist (P-1) stating that
complainant had �permanent organic mood disorder� and a �disabling loss
of concentration.� In response to this work restriction, complainant
again entered LWOP status and the agency requested that he undergo
a �fitness for duty� evaluation. The agency's Chief of Occupational
Medical Service (P-2) performed the evaluation, and in October 1995,
found that complainant was unfit, with or without accommodation, to
perform duties of a Work Controller. In the evaluation, P-2 stated that
complainant demonstrated an �impaired ability to concentrate, efficiently
process information, and [had] at least a subjective problem with
memory.� P-2 diagnosed complainant with chronic, moderate depression,
chronic pain disorder, and a history of a ruptured intervertebral disk.
At the time of the evaluation, P-2 did not foresee a marked improvement
in complainant's baseline condition.
In January 1996, complainant presented S-1 with another letter from P-1,
this time stating that complainant's use of antidepressants had improved
his concentration and impulse control. P-1 further suggested that,
based on complainant's request, he felt �it necessary to recommend that
[complainant go] back to the work force on a part-time basis to see if
with the treatment he ha[d] received he could handle the stressors of
the job.�
Consequently, P-2 reopened the initial fitness for duty examination and
conducted an on-site evaluation at complainant's workplace. He concluded
that complainant's condition had not changed, and that complainant was
still unfit to perform the work controller duties. S-1 then searched
for another position within the organization that would accommodate
complainant's physical and mental restrictions, but was unable to locate
such a position.
The Agency's Equal Employment Staffing Specialist, EE-1, was then
instructed to place complainant in the physically restricted program
in order to find a position for which complainant was qualified and in
which he could be accommodated. As required, EE-1 screened available
positions for sixty days, but was unsuccessful in locating a position
for complainant. Complainant was removed from Federal service on April
24, 1996 due to his physical and mental inability to perform his duties.
Complainant filed a formal complaint alleging discrimination on the bases
of age (dob 9/7/46), disability (trauma to neck and back, organic mental
disorder), and reprisal (prior EEO complaints) when: 1) on January 4,
1996, he was denied the opportunity to return to duty following an
extended period of LWOP; 2) on January 31, 1996, he was determined to
be medically disqualified from work; and 3) from March 1995 through
January 1996, he did not receive compensation or notification of his
medical disqualification.
On March 19, 1998, after a hearing had been conducted, an EEOC AJ
issued findings of fact and conclusions of law on the merits of the case,
finding that complainant had not been discriminated against by the agency.
On May 26, 1998, the agency issued its FAD adopting the AJ's recommended
decision.<1> This appeal followed. Complainant filed a brief in support
of his appeal, and the agency filed an opposing response.
ANALYSIS AND FINDINGS
Age and Reprisal
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).
To establish a prima facie case of reprisal, complainant must show that:
1) he engaged in protected activity; 2) the responsible officials
were aware of the protected activity; 3) he was subsequently or
contemporaneously subjected to adverse treatment; and 4) the adverse
action followed the protected activity within such a period of time that
retaliatory motivation may be inferred. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University
College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988);
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye v. Department
of Labor, EEOC Request No. 05940764 (December 15, 1994).
At the outset, we note that complainant has not established a prima facie
case with respect to his claim that he was not formally notified that he
was deemed medically disqualified by the agency. Complainant has not
shown that this was an adverse action. At the time that complainant
was deemed medically disqualified, he had already stopped working at
the request of his doctor, who deemed him permanently disabled in March
of 1995. Complainant was aware that he had been unable to work at the
time that the agency formally deemed him medically disqualified to work.
Complainant therefore has not shown that he was harmed because the agency
did not formally notify him of the fact that he was unable to work,
a fact of which he was already aware.
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).
With respect to complainant's claim that he was discriminated against
on the bases of age and reprisal when he was denied the opportunity
to return to duty following an extended period of LWOP, the agency
has articulated a legitimate, nondiscriminatory reason for its action;
namely, that complainant was not qualified to perform the Work Controller
position and that no other position was available that complainant could
perform. Since the agency articulated such a reason, the burden returns
to the complainant to demonstrate that the agency's articulated reason
was pretext for discrimination. We find that complainant has failed
to do so. As evidence that he was able to return to work, complainant
presented a letter from his doctor, P-1, stating that he should be given
an opportunity to return to work. This letter did not state affirmatively
that complainant was able to return to work. It appears from the letter
that P-1 was unsure as to whether complainant could work. The doctor's
letter does not, therefore, disprove the agency's assertion, based on
its fitness-for-duty evaluation, that complainant could not perform any
of the positions available. Further, complainant has not presented, nor
does the record contain, evidence that the agency's action was pretextual.
Therefore, complainant has failed to establish that he was subjected to
age and reprisal discrimination with respect to this claim.
With respect to complainant's claim that he was discriminated
against on the bases of age and reprisal when he was determined to be
medically disqualified to work, the agency has presented a legitimate,
nondiscriminatory reason for its action; namely, that the fitness-for-duty
examination performed by P-2 demonstrated that complainant's physical
and mental condition rendered him disqualified from work. Because the
agency articulated such a reason, the burden returns to the complainant
to demonstrate that the agency's articulated reason was pretext for
discrimination. The Commission finds that complainant has failed to
do so. As evidence that he was able to return to work, complainant
presented the letter from his doctor, discussed above. As noted,
the letter does not disprove the agency's assertion that complainant
could not work in the Work Controller position or in any of the other
positions available. Further, complainant has not presented, nor does
the record contain, evidence that the agency's action was pretextual.
Therefore, complainant has failed to establish that he was subjected to
age and reprisal discrimination with respect to this claim.
With respect to complainant's claim that he was discriminated against on
the bases of age and reprisal when, from March 1995 through January 1996,
he did not receive compensation, the agency has articulated a legitimate,
nondiscriminatory reason for its action. The record shows that it was
complainant's own doctor, P-1, who requested that complainant be removed
from work, beginning in March 1995, because of a permanent disability.
The agency therefore was not obligated to compensate complainant after
March 1995. Because the agency articulated such a reason, the burden
returns to the complainant to demonstrate that the agency's articulated
reason was pretext for discrimination. The Commission finds that
complainant has failed to do so. Complainant has not shown that he could
have worked after March 1995, or that he should have been compensated
while he was not working. Further, complainant has not presented,
nor does the record contain, evidence that the agency's action in not
compensating him was pretextual. Therefore, complainant has failed
to establish that he was subjected to age and reprisal discrimination
with respect to this claim.
Disability
In order to establish a disability discrimination claim under the
Rehabilitation Act, a complainant must demonstrate that: (1) he is an
�individual with a disability�; (2) he is �qualified� for the position
held or desired, i.e. can perform the essential functions with or without
accommodation; and (3) he was subjected to an adverse employment action
because of his disability. See Swanks v. WMATA, 179 F.3d 929, 934
(D.C.Cir. 1999); Heyman v. Queens Village Committee for Mental Health
for Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999).
Where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, the
Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Swanks, 179
F.3d at 933. Under this analysis, in order to establish a prima facie
case, complainant must demonstrate that: (1) he is an �individual with
a disability�; (2) he is �qualified� for the position held or desired,
i.e. can perform the essential functions with or without accommodation;
and (3) he was subjected to an adverse employment action. Swanks,
179 F.3d at 933. The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
Assuming for the sake of argument that complainant is an individual with
a disability, the next question is whether complainant is a qualified
individual with a disability as defined in 29 C.F.R. �1630.2(m).
As set out in the Commission's regulations, a "qualified individual
with a disability" is a disabled person who, with or without reasonable
accommodation can perform the essential functions of the position
in question. Id. The Commission notes that in circumstances where
complainant cannot perform the essential functions of his job with
or without a reasonable accommodation, reasonable accommodation
may include reassignment to another position. See Ignacio v. USPS,
EEOC Petition No. 03840005 (September 4, 1984), aff'd 30 M.S.P.R. 471
(Spec. Pan. Feb. 7, 1986).
The Commission finds that complainant is not a qualified individual with a
disability. The record shows that complainant had trouble concentrating,
efficiently processing information, and remembering information.
He could not perform the essential functions of his own position, nor
could he perform the essential functions of any of the open positions
that the agency located around the time of the alleged discrimination as
possible reassignments.<2> No form of accommodation has been identified
which would allow complainant to perform the essential functions of
his work controller position or any other position. Complainant was,
therefore, not a qualified individual with a disability, and, therefore,
cannot demonstrate that he was discriminated against on the basis of
his disabilities.
CONCLUSION
Complainant has not established his claims of age, disability, and
reprisal discrimination. Accordingly, the final agency decision 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
August 21, 2002
__________________
Date
1Under the regulations of the Commission then in effect, the agency could
accept, reject, or modify the AJ's decision. Under the Commission's
present regulations, the decision of the AJ is binding on both parties,
subject to the right of appeal to the Commission. See 29 C.F.R. ��
1614.109(i), 1614.110(a).
2The agency is advised that 29 C.F.R. � 1614.203(g), which governed and
limited the obligation of reassignment in the Federal sector, has been
superceded and no longer applies. 67 Fed. Reg. 35732 (5/21/01), to be
codified as 29 C.F.R. �203(b). The Americans with Disabilities Act (ADA)
standards apply to all conduct on or after June 20, 2002, and emphasize,
among other things, a broader search for a vacancy. The ADA regulations
regarding reassignment can be found at 29 C.F.R. �� 1630.2(o) and 1630.9.
Additional information can be found in the Appendix to the ADA regulations
and in the EEOC's Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act (March 1, 1999)
at Questions 25-30. These documents are available on the EEOC's website
at www.eeoc.gov.