01995547
06-20-2002
Eric G. Smith, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Eric G. Smith v. Federal Deposit Insurance Corporation
01995547
June 20, 2002
.
Eric G. Smith,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01995547
Agency No. RTC 96-16
Hearing No. 110-97-8123X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
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. Complainant alleges he was discriminated against
on the bases of sex (male) and disability (human immunodeficiency virus)
when his temporary appointment as an Office Systems Network Administrator,
LG-9, which expired on December 31, 1995, was not extended to May 31,
1996. For the following reasons, the Commission affirms the agency's
final decision.
The record reveals that complainant, previously a Network Administrator at
the agency's Resolution Trust Corporation facility in Atlanta, Georgia,
filed a formal EEO complaint with the agency on February 3, 1996,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sex discrimination in that five of the six employees from complainant's
section that were retained were members of complainant's protected class.
The AJ further concluded that while complainant established a prima facie
case of disability discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to show were mere pretext. The agency's final decision implemented
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Initially, we find that even assuming, arguendo, complainant established
a prima facie case of sex discrimination, the agency articulated a
legitimate, non-discriminatory reason for its actions. Specifically,
the agency states that due to complainant's poor attendance record and
frequent uses of small amounts of leave during his temporary appointment,
complainant was not a dependable employee. Complainant has proffered
no persuasive evidence to show that this reason is mere pretext for
sex discrimination.
Turning to complainant's claim of disability discrimination, the
Commission finds that complainant has a physical impairment which
substantially limited one or more major life activities and that he was,
therefore, an individual with a disability under the regulations. See
Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196 (1998) (HIV infection,
even during so-called asymptomatic phase, is a physical impairment that
substantially limits the major life activity of reproduction); Doe v
Department of the Treasury, EEO No. 03990024 (May 20, 1999). Complainant's
ability to perform the essential functions of his position was not in
dispute, and the Commission therefore finds that he was a qualified
individual with a disability within the meaning of the Rehabilitation Act.
The record shows that upon request from the agency, due in part to the
concern over his numerous short-term absences, complainant provided a
letter from his physician which stated that complainant was �involved in a
drug study testing a new medical therapy which is vital to his health,�
and laid out a schedule for necessary work absences for treatment.
This letter was given to complainant's supervisor in June 1994, and
again to the supervisor's replacement in June 1995. Upon the arrival of
a third successive supervisor, complainant was again asked to provide
documentation regarding his medical condition, including a diagnosis
and prognosis. Complainant declined to provide those specifics, but
he did furnish the new supervisor with a second letter
from his physician, in September 1995, which stated that complainant
�needs to be followed on a regular basis for his chronic medical
illness.� (Investigative File, Exhibit 18). The record further
reflects that complainant did not disclose the nature of his disability
to the agency until he filed his formal EEO complaint, after the agency
made the decision not to extend his appointment. During the hearing,
management officials testified that they were not aware of the nature
of complainant's illness at any time during his employment, and the AJ
found this testimony to be credible.
In order to prevail in his claim of discrimination, complainant
must show that the relevant agency officials were aware that he was
an individual with a disability. Ray v. Department of Energy, EEOC
No. 01983058 (June 29, 2001); Lester v. Department of the Interior,
EEOC No. 01944102 (January 16, 1996); Spering v. Department of the
Navy, EEOC No. 01930551 (May 19, 1993). It is the position of the
Commission that actual knowledge of a disability is required to trigger
any agency liability. Poff v. Department of Health and Human Services,
EEOC No. 01956117 (November 21, 1996); Gant v. United States Postal
Service, EEOC Request No. 05910096 (July 9, 1991).
However, the substantial evidence of record supports the AJ's finding
that complainant did not disclose to the agency that he was an individual
with a disability at any time during his employment. The Commission
has consistently found that a known disability is one of which the
relevant agency officials had actual knowledge of, or notice of, a
disability. See, e.g., Hill v. Department of the Interior, EEOC Appeal
No. 01930671 (October 26, 1993); Stallworth v. Department of Veterans
Affairs, EEOC Request No. 05900416 (August 2, 1990) (awareness that
complainant was having emotional problems did not constitute actual
knowledge of a disability); Ritter v. United States Postal Service,
EEOC Petition No. 03890089 (December 8, 1989). When the disability
and/or the need for accommodation is not obvious, as in the instant
case, the employer may ask the individual for reasonable documentation
about his/her disability and functional limitations. The employer is
entitled to know that the individual has a covered disability for which
s/he needs a reasonable accommodation. Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, Question 6. (March, 1999).
Consequently, the Commission finds nothing on appeal to depart from the
finder of fact's conclusion that complainant failed to adequately impart
actual knowledge of his disability to the agency, and therefore the agency
was not under obligation to provide him with reasonable accommodation.
As the agency was not required to provide complainant with reasonable
accommodation, its reliance on complainant's poor attendance record as a
legitimate, non-discriminatory reason for not extending his appointment
does not violate the Rehabilitation Act. Ross v. Department of the
Treasury, EEOC No. 01982708 (August 2, 2001); see also Beck v. University
of Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996). As such,
we find no discrimination.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's sex or disability.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final decision.
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
June 20, 2002
__________________
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.