01A15022_and_01A20212
03-24-2003
Ernest N. Bellantoni, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Ernest N. Bellantoni v. Department of the Navy
01A15022, 01A20212
March 24, 2003
.
Ernest N. Bellantoni,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal Nos. 01A15022 and 01A20212
Agency Nos. 89-65584-002, 90-65584-002, 90-65584-007, 98-66001-007
DECISION
Complainant timely initiated two appeals from two final agency decisions
concerning four complaints 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., 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 appeals are accepted for the Commission's
de novo review pursuant to 29 C.F.R. � 1614.405. Pursuant to 29 C.F.R. �
1614.606, the Commission is consolidating complainant's appeals. For the
following reasons, we affirm the agency's final decisions.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Electronics Engineer, GM-855-13, and as an Engineer,
DP-855-3, at the Space and Naval Warfare Systems Center, in San Diego,
California. Complainant sought EEO counseling and subsequently filed
formal complaints on March 10, 1989, March 21, 1990, August 15, 1990,
and January 5, 1998.
In his complaints filed on March 10, 1989, March 21, 1990, and August
15, 1990, Agency Nos. 89-65584-002, 90-65584-002 and 90-65584-007,
complainant alleged that he was discriminated against on the bases of
age (D.O.B. December 24, 1933), disability (disabled veteran, limited
respiratory capacity), and in retaliation for prior EEO activity when:
In July 1985, complainant was subjected to unwanted transfer number one;
Complainant received a low performance evaluation for the period from
July 1, 1985, through June 30, 1986 (includes mid-year review);
On March 31, 1986, complainant was detailed to unclassified duties on
the �Tiger Team,� which was to review and correct deficiencies in the
agency's contracting processes and procedures;
On or about January 1, 1987, complainant was subjected to unwanted
transfer number two;
Complainant received a low performance evaluation for the period from
July 1, 1986, through September 30, 1987 (includes mid-year review);
Complainant received a low performance evaluation for the period from
October 1, 1987, through June 30, 1988;
On July 5, 1988, complainant was subjected to unwanted transfer number
three;
On December 4, 1988, complainant was subjected to unwanted transfer
number four;
Complainant received a low performance evaluation for the period from
July 1, 1988, through June 30, 1989 (includes mid-year review);
On September 24, 1989, complainant was detailed to a non-supervisory
position as the Deputy Department Director, Code 05, and the detail
was extended in January 1990;
In October 1989, complainant was improperly listed in the agency
telephone directory as a non-supervisory employee;
Complainant's mid-year performance evaluation for the period from July 1,
1989, through December 31, 1989, was delayed until February 1990;
On November 30, 1990, complainant was subjected to improper EEO
complaints processing when the agency cancelled complainant's
consolidated complaints for failure to accept an offer of full relief
and when it subsequently refused to process the matter as a spin-off
complaint;<1> and
The agency did not have or did not implement the required Affirmative
Action Plan for Disabled Veterans or any of the instructions, policies,
and procedures affecting disabled veterans, and, the agency failed
to document complainant's personnel file to reflect him as an over 30
percent disabled veteran. This noncompliance denied complainant of his
entitlements as an over 30 percent disabled veteran to noncompetitive
promotions, training, and other work place considerations.
In his complaint filed on January 5, 1998, Agency No. 98-66001-007,
complainant alleged that he was discriminated against on the bases of
age (D.O.B. December 24, 1933), disability (disabled veteran, limited
respiratory capacity, stress/general anxiety disorder), and in retaliation
for prior EEO activity when:
Complainant was assigned low-skill work as an Assistant Contracting
Officer's Representative (ACOR) which affected his performance rating
and career advancement;
On August 4, 1997, complainant was notified that he received a Successful
performance rating with no award points for the performance rating
period of July 1, 1996, through June 30, 1997;
On August 18, 1997, complainant was denied an extension of time to file
an administrative grievance regarding his performance rating; and
Complainant was not provided with adequate resources to perform a higher
level of work.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision by the agency.
Complainant initially requested a hearing before an AJ, but on the
second day of the hearing, complainant withdrew his hearing request,
which according to complainant's appeal was due to �health limitations
and overburdening caused by the hearing process.� Complainant asked that
the agency issue a final decision, pursuant to 29 C.F.R. � 1614.110(b).
The agency issued a final decision on July 27, 2001, regarding Agency
Nos. 89-65584-002, 90-65584-002, and 90-65584-007, and issued a final
decision on August 23, 2001, regarding Agency No. 98-66001-007. It is
from these findings of no discrimination that complainant now appeals.
Final Agency Decisions
In the agency's July 27, 2001 decision, and attached Analysis of the Case
for Agency Nos. 89-65584-002, 90-65584-002, and 90-65584-007, the agency
issued a finding of no discrimination. Regarding the basis of age, the
agency did not evaluate whether complainant established a prima facie case
of discrimination, because it maintains that it articulated legitimate,
nondiscriminatory reasons for its employment decisions, and therefore,
such determination became unnecessary. Further, the agency found that
complainant did not meet his burden of establishing discrimination on
the basis of age by a preponderance of the evidence.
The agency determined that complainant failed to establish a prima
facie case of discrimination on the basis of disability. Specifically,
it found that complainant failed to establish that he is an individual
with a disability because he did not present the medical documentation
necessary to show that his respiratory condition constituted an impairment
that substantially limited a major life activity. Additionally, the
agency concluded that complainant's status as a 30 percent disabled
veteran, or his a record of being a disabled veteran, alone, did not
render him a �qualified disabled employee� under the Rehabilitation Act.
Additionally, the agency determined that even assuming that complainant
was an individual with a disability covered under the Rehabilitation Act,
complainant failed to show that he was denied a reasonable accommodation.
With respect to the basis of reprisal, the agency found that complainant
did not establish a prima facie case of reprisal for claims (a) through
(h), but he did establish a prima facie case of reprisal for claims
(i) through (n). Nevertheless, the agency asserts that it put forth
legitimate, nondiscriminatory reasons for its actions, but complainant
failed to meet his burden of proving that he was discriminated against
by a preponderance of the evidence. The agency also concluded that
complainant failed to show that he was subjected to a hostile work
environment on any of the alleged bases.
In the agency's August 23, 2001 decision, and attached Analysis of the
Case for Agency No. 98-99001-007, the agency also issued a finding of
no discrimination. As in its July 27, 2001 decision, the agency again
did not evaluate whether complainant established a prima facie case
of discrimination on the basis of age, because the agency maintains
that it articulated legitimate, nondiscriminatory reasons for its
employment decisions, and therefore, such determination once again
became unnecessary. The agency determined that complainant did not
meet his burden of establishing discrimination on the basis of age by
a preponderance of the evidence.
The agency also found that complainant did not establish a prima facie
case of discrimination on the basis of disability. Regarding the
alleged disability of stress, or anxiety, the agency concluded that
the medical evidence presented showed that the condition was temporary.
Therefore, complainant failed to show that he is an individual with a
disability under the Rehabilitation Act, as is the case with complainant's
respiratory condition and his status as a 30 percent disabled veteran.
Additionally, even assuming that complainant was an individual with a
disability, he failed to show that he was not reasonably accommodated
by the agency.
Regarding complainant's claim of reprisal, the agency maintains that
complainant established a prima facie case of reprisal for claim (p), but
not for claims (o), (q), or (r). As in its prior decision, the agency
determined that it put forth legitimate, nondiscriminatory reasons for
its actions for which complainant failed to rebut by showing that the
agency's actions were motivated by discriminatory or retaliatory animus.
The agency again concluded that complainant failed to show that he was
subjected to a hostile work environment on the bases of age, disability
or reprisal.
On appeal, complainant requests that his original complaints be
re-examined, because the agency did not properly define his claims.
Complainant also claims that none of his �22 key or peer witnesses�
were interviewed by the agency. Complainant reiterates his belief that
the actions taken against him stem from his promotion of an agency
whistleblower in 1986, and, complainant contends that the agency did
not consider his hostile work environment claim. The agency requests
that we affirm its final decisions.
Claim Definition and Agency Investigation
The Commission has thoroughly examined the record, including all
statements submitted by the parties, and, for the reasons discussed
below, the Commission affirms the agency's final decisions. As an
initial matter, we find that the allegations of discrimination raised in
complainant's four complaints have been properly defined by the agency.
Complainant has failed to show that the agency incorrectly defined
complainant's allegations of discrimination, claims (a) through (r) above,
by misidentifying the issues or by failing to include certain issues in
the defined claims. We further note that the Commission has already
issued decisions regarding Agency Nos. 89-65584-002, 90-65584-002,
90-65584-007 and 98-66001-007, in Bellantoni v. Department of the Navy,
EEOC Appeal No. 01963039 (December 10, 1996), Bellantoni v. Department
of the Navy, EEOC Appeal No. 01974272 (July 28, 1998), and Bellantoni
v. Department of the Navy, EEOC Appeal No. 01983836 (September 9, 1999),
in which no finding of claim misidentification has been made, and for
which no Request for Reconsideration has been filed by complainant
protesting the definition of the claims as defined by the agency or
the Commission.
Regarding complainant's claim that the agency's investigation was
deficient in that his 22 witnesses were not interviewed by the agency,
we find that the investigation was conducted in good faith, and that the
record is an impartial and appropriate factual record upon which to make
findings on the claims raised by complainant in his complaints. See 29
C.F.R. � 1614.108(b). Furthermore, complainant has not shown that any
of the evidence that he wants in the record, as he advocates on appeal,
would change the ultimate result and lead to a finding of discrimination.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. 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. Id. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (applying McDonnell
Douglas to ADEA cases); Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has articulated such a reason,
the question becomes whether the proffered explanation was the true
reason for the agency's action, or merely a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). The burden
of persuasion, by a preponderance of the evidence, remains at all times
on complainant. Burdine, 450 U.S. at 256.
Assuming that complainant has established a prima facie case of
discrimination on the bases of age, disability, and reprisal, the
Commission finds that the agency met its burden in articulating
legitimate, nondiscriminatory reasons for complainant's transfers,
reassignments, low performance evaluations, and other acts or omissions
alleged in complainant's four complaints. The Commission further finds
that complainant did not prove, by a preponderance of the evidence, that
the agency's articulated reasons were not its true reasons, but were a
pretext for unlawful discrimination on the basis of age or disability,
or retaliation. Complainant stated that he was the oldest division
supervisor in each of the departments where the alleged discrimination
occurred, and that younger supervisors were rotated into his vacated
positions. Such assertions alone are insufficient. Complainant failed to
show that similarly situated individuals outside of his protected classes
were treated more favorably than he, that an inference of discrimination
occurred, or that the legitimate, nondiscriminatory reasons articulated
by the agency were pretextual. Complainant also did not show that the
agency's actions were motivated by retaliatory animus or by discriminatory
animus on the bases of age or disability.
Reasonable Accommodation
Regarding complainant's contentions that he was not reasonably
accommodated by the agency, we note that no finding of discriminatory
intent is required in order to conclude that an agency failed to provide
a reasonable accommodation to a qualified individual with a disability.
Hughes v. United States Postal Service, EEOC Appeal Nos. 01A01512 and
01A00168 (April 20, 2000). For the purpose of analysis, we assume without
finding that complainant is a qualified individual with a disability
within the meaning of the Rehabilitation Act.<2> We further find,
however, that complainant failed to establish that he has been denied
reasonable accommodation. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical and
mental limitations of an otherwise qualified individual with a disability
unless the agency can show that accommodation would cause undue hardship.
Webber v. United States Air Force, EEOC Appeal No. 01980587 (March 2,
2001). To the extent that complainant's request that his shorter work
days be taken into account in his performance evaluations, as well as
his requests for top security clearance and better computer equipment,
were requests for reasonable accommodation, we find that reasonable
accommodation was provided by the agency.
When complainant returned to work after being out on workers' compensation
for approximately 11 months starting in approximately 1994, and returning
in 1995, his doctors recommended that he work light duty and that he work
no more than a six hour day to reduce stress. In 1998, complainant's
physician recommended that he remain on a six hour work day to �benefit
his overall health� as �[h]is chronic obstructive pulmonary disease
continues to cause him to fatigue easily.� Complainant also informed
management that he could not drive far, work on a ship, travel, or go into
industrial areas where the air was not clean, and that he could not meet
his required work deadlines because of the stress. Complainant claims
that he was not fully accommodated because he was rated against full
performance levels which did not take into account his shortened work
days and his inability to meet deadlines, which he claims resulted
from his failure to fully recover from his work stress disabilities.
Complainant further claims that he was not reasonably accommodated
because did not have an up-to-date computer and a top secret clearance
that allowed him to perform higher level work.
Management responded that the work goals set for complainant took the fact
that he worked a six hour day into account, and that the deadlines set
were agreed to by complainant. Complainant was allowed to work limited
hours as prescribed by his physicians and was not required to go aboard
ships or to travel. Taking into account complainant's requests that he
work limited hours, could not go aboard ships or travel, could not go
into industrial areas where the air was not clean, could not drive at
night, and needed a position with no stress, complainant was assigned
to do Assistant Contracting Officer's Representative (ACOR) work.
Complainant suffered no loss of pay when he was assigned to the ACOR
position. The agency added that complainant's engineering skills were
dated, and complainant did not take courses to refresh his skills, even
though management requested that complainant update them. Complainant was
provided a Pentium computer that was only one year old at the time that
it was given to him and included the functioning programs Microsoft
word, Excel, and electronic mail (e-mail). Complainant also used a
�486" computer. Regarding his allegation that he was denied top secret
clearance, the agency responded that it bases such decisions on the needs
of the position, not on an employee's desire to have a particular level
of clearance. The agency stated that it was expensive to investigate an
employee for a top secret, sensitive, compartmented information (SCI)
clearance which was intelligence related. Complainant was not working
in engineering areas that required more than the secret clearance that he
had, and complainant's lack of a higher clearance did not prevent him from
fulfilling the duties of his position. While under the Rehabilitation
Act, protected individuals are entitled to reasonable accommodation, but
they are not necessarily entitled to their accommodation of choice. See
Castaneda v. United States Postal Service, EEOC Appeal No. 01931005
(February 17, 1994). Here, the Commission finds that complainant has
not been denied reasonable accommodation.
Harassment
Finally, under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), complainant's claim of harassment must fail.
See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6
(March 8, 1994). A prima facie case of harassment is precluded based
on our finding that complainant failed to establish that any of the
actions taken by the agency were motivated by his age, disability or
prior EEO activity. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (September 21, 2000).
Conclusion
Therefore, after a careful review of the record, including 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 24, 2003
__________________
Date
1The agency's dismissal of claim (m) for
failure to state a claim, was affirmed by the Commission in its decision
in Bellantoni v. Department of the Navy, EEOC Appeal No. 01963039
(December 10, 1996).
2We emphasize that this is an assumption for the purpose of analysis
and not a finding that complainant is an individual with a disability
or established a prima facie case of disability discrimination.
Such assumption in no way changes our determination in Bellantoni
v. Department of the Navy, EEOC Appeal No. 01A12988 (October 3, 2002),
where the disabilities alleged are the same as some of those raised in the
instant complaints: generalized anxiety disorder and limited pulmonary
capacity with associated respiratory illness. In the Commission's
decision in Appeal No. 01A12988, we conclude that complainant is not
an individual with a disability, in that he did not produce evidence to
demonstrate that he is substantially limited in a major life activity.
We also note that although in the instant case complainant relies
on the fact that he has veterans' disability status, this does not
necessarily establish that he is disabled under the Rehabilitation Act.
McGrady v. United States Postal Service, EEOC Appeal No. 01976169 (July
10, 2000). As we have stated in prior decisions, veterans' preference is
not an enumerated basis for filing a formal EEO complaint. Administrative
responsibility for the affirmative action plan for disabled veterans lies
with the Office of Personnel Management. Bellantoni v. Department of the
Navy, EEOC Appeal No. 01983836 (September 9, 1999). To the extent that
claim (n) is based on an affirmative action plan for disabled veterans,
it is outside of the Commission's jurisdiction. See id. (citing Carter
v. United States Postal Service, EEOC Request No. 05900340 (April 19,
1990)).