01A12988
10-03-2002
Ernest N. Bellantoni, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ernest N. Bellantoni v. Department of the Navy
01A12988
October 3, 2002
.
Ernest N. Bellantoni,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12988
Agency Nos. 95-68944-004; 95-68944-009
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., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
Complainant filed formal complaints on October 3, 1994, and December 21,
1994. In his first complaint, complainant alleges he was discriminated
against on the bases of his disability (limited pulmonary capacity with
associated respiratory illness), age (DOB 12/24/33), and in reprisal
for prior protected activity when letters to his Commanding Officer
(CO) requesting a reasonable accommodation were ignored. In his second
complaint, complainant alleges he was discriminated against on the bases
of his disabilities (generalized anxiety disorder and limited pulmonary
capacity with associated respiratory illness), age, and in reprisal
for his prior complaint when he was rated as Successful for the rating
period of July 1, 1993, through June 30, 1994. The agency consolidated
these complaints in its FAD.
The record reveals that during the relevant time, complainant was employed
as a Electronics Engineer at the agency's Space and Naval Warfare
Systems Center in San Diego, California. From February 1992 through
February 1993, complainant was home on extended sick leave because of his
generalized anxiety disorder. Complainant returned to work on February
22, 1993, but was only cleared to work 4 hours a day by his physician.
When he returned to work, complainant was placed under the supervision of
the same individual (S1) whom complainant believed had previously caused
him problems and added to his anxiety. Additionally, complainant states
that the position he returned to was not fully defined, as his duties
were not the same supervisory duties they had been before his absence.
Complainant's physician sent letters to complainant's Commanding Officer
(CO) criticizing complainant's working conditions, given his generalized
anxiety disorder. The physician stated that the placement of complainant
back under S1's supervision would inhibit complainant's recovery.
The physician requested that complainant be provided with a position
description and performance plan so as to map out complainant's career
development.
In January 1994, midway through the rating period in question,
complainant was provided a mid-year review to sign. Complainant did so,
but maintained that he should be provided with a clear performance plan
and career objectives. On April 2, 1994, complainant went back out on
extended sick leave. He was rated by S1 as being successful for the
rating period of July 1, 1993, through June 30, 1994. Formal complaints
followed, as noted above.
At the conclusion of the investigations, 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. Complainant
requested that the agency issue a final decision.<1>
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination based on his disability in either
complaint. Specifically, the agency found that complainant did not
produce evidence to demonstrate he had an impairment which substantially
limited him in a major life activity. The agency concluded that
complainant's medical documentation did not support the conclusion
that he was substantially limited by his pulmonary condition or his
generalized anxiety disorder because it did not substantiate the effects
these conditions had on complainant's life.
With respect to his reprisal claim, the agency concluded that complainant
established a prima facie case in that, he engaged in protected activity,
his managers were aware of such activity, and he received a Successful
rating and not a higher rating as complainant argues he deserved within
such a period of time after the protected activity that a retaliatory
motive could be inferred. This conclusion notwithstanding, the agency
found that it had articulated a legitimate, non-discriminatory reason
for its actions. Regarding the assertion that complainant's letters
to the CO were ignored, the agency stated that complainant's letters
were not ignored. The agency states that the letters were routed to and
addressed by the appropriate officials, and complainant was provided with
accommodations to make his work environment more suitable.<2> The agency
noted that this routing procedure was standard, as the CO delegates duties
and therefore is not the appropriate person to answer every letter that
comes to him personally. As to the rating, the agency stated that
the Successful performance rating was an accurate reflection of his
work during the rating period. Complainant argues that he should have
been rated Superior, as that was the average rating of his work group.
The agency noted that in fact only two of six individuals received a
higher rating than complainant. The underlying argument complainant
appears to be making is that had he received the reasonable accommodation
he and his doctor requested, that of a clear position description and
performance plan, he would have been able to perform in a superior manner.
Stated more succinctly, complainant claims that the lack of superior
performance on his part was due to the agency's failure to provide him
with a reasonable accommodation.
Finally, with respect to complainant's age claim, the agency did not
draw a conclusion as to whether complainant established a prima facie
case. Rather, the agency concluded that legitimate, non-discriminatory
reasons were articulated as to both complaints, and that complainant
failed to rebut these reasons as being a pretext masking discrimination.
Complainant is silent on appeal and the agency requests that we affirm
its FAD.
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 is not an individual with a
disability, in that he has not produced evidence to demonstrate that he
is substantially limited in a major life activity. First, complainant's
physician stated that complainant's generalized anxiety disorder was
a temporary condition. The medical evidence relating to complainant's
generalized anxiety disorder indicates that it only precluded him from
working full-time in the particular job he held or under the particular
supervisor he had. The Commission has repeatedly held that being unable
to work in one particular job or with a particular supervisor does not
render one substantially limited in working. See Groshans v. Department
of the Navy, EEOC Appeal No. 03950109 (February 1, 1996) (individual with
severe allergy that had anaphylactic reactions who could work anywhere
but one office building was not substantially limited in the ability to
work). Cf. EEOC Regulation 29 C.F.R. Pt. 1630.2(j), App. (an individual
is not substantially limited in working when she is unable to perform
one particular job for one employer). Regarding his pulmonary condition,
there is no evidence detailing its effect on complainant's life beyond
complainant himself stating that walking distances of 200 feet or more
cause him shortness of breath. Complainant'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. 29 C.F.R. �
1630.2(j). The evidence of record is limited and does not demonstrate
that complainant is substantially limited in a major life activity.
Thus, complainant is not entitled to a reasonable accommodation under
the Rehabilitation Act.
The Commission further finds that complainant failed to present evidence
that the agency's articulated reasons for its actions were a pretext
for discrimination on the bases of complainant's age or in reprisal.
In reaching this conclusion, we note that the agency did respond to the
letters complainant's physician sent the CO. The fact that the CO did
not do so directly is immaterial. Further, with regard to the rating,
complainant offers only an unsupported argument that he deserved a higher
rating. There is no evidence to suggest that the reasons proffered by the
agency are a pretext masking discrimination. Therefore, after a careful
review of the record, including the agency's response, and 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
October 3, 2002
__________________
Date
1 We note that both of these complaints
have extensive procedural histories. The FAD and investigative record
each contain statements mapping the journey each complaint has taken,
and will therefore not be restated herein.
2 The agency states that complainant was permitted to work a part-time
schedule, was not assigned time sensitive work, so as to avoid causing
him stress, and complainant was placed under the immediate supervision of
another supervisor (S2), in response to his request to not report to S1.
The Commission notes that the agency was under no obligation to change
complainant's supervisor. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915-002, Question 32 at 46 (March 1, 1999).