01A14940
08-07-2003
George H. Cornish, Complainant, v. John Ashcroft, Attorney General, Department of Justice (Immigration and Naturalization Service) Agency.
George H. Cornish v. Department of Justice
01A14940
August 7, 2003
.
George H. Cornish,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(Immigration and Naturalization Service)
Agency.
Appeal No. 01A14940
Agency No. I-00-H023
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.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Immigration Inspector, GS-9, by the Immigration and Naturalization
Service in El Paso, Texas. Complainant sought EEO counseling and
subsequently filed a formal complaint on January 16, 2000, alleging that
he was discriminated against on the bases of disability (knee injury)
and age (51) when on December 2, 1999, the Immigration Officer Academy
(IOA) discharged him from the Journeyman Immigration Inspector (JII)
class, for failing the medical screening.
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, assuming that complainant
establishes a prima facie of age discrimination, the record shows that
management had legitimate, non-discriminatory reasons for discharging him
from the JII course. Specifically, the agency found that complainant
reported to the Artesia, New Mexico, Federal Law Enforcement Training
Center (FLETC) on November 30, 1999, to attend the JII class,
JII-003-116. The agency found that as a prerequisite for attending the
class, all students were required to be screened by the FLETC Health
Screening Unit. The agency also found that complainant and another eight
students were returned to their duty stations because they failed to
pass the medical screening, which management admitted used an �improper�
standard. The agency further found that complainant's class and the
JII-117 class were the first classes to be screened under new contractors,
and that the improper standard was applied due to unfamiliarity, rather
than age-based animus. The agency concluded that complainant failed to
establish his age discrimination claim.
Regarding complainant's claim of disability discrimination, the agency
found that he failed to establish that he is an individual with a
disability under the Rehabilitation Act. Specifically, the agency
found that complainant did not demonstrate that as a result of his knee
injury, he was substantially limited in his ability to engage in any
major life activities. The agency noted that the FLETC Medical Director
requested that complainant be accommodated for the physical portion of
the JII course, and that this shows that the FLETC Medical Director did
not consider complainant as an individual with disability. Finally,
the agency found that complainant did not consider himself disabled.
The agency concluded that complainant failed to establish his disability
discrimination claim.
On appeal, complainant contends that none asked him if he wanted
an accommodation. Complainant contends that at his duty station, he
works six days a week, on his feet all day long at a border station.
Complainant alleged that he does more bending and kneeling there than
he would ever do at the academy. Complainant alleged that he had never
been on light duty in over five years on the job.
Complainant also contends that the Immigration Academy in Georgia
was not taking any personnel over the age of 37. Complainant further
contends that he has not been invited back to the academy. Finally,
complainant contends he had lost some points toward promotion, while
several personnel that went with him to the Immigration Inspector Academy
in 1996 have already been promoted to GS-11.
ANALYSIS AND FINDINGS
Disparate Treatment Claim
Complainant's claim of discrimination based on age constitutes a claim
of disparate treatment employment discrimination. A claim of disparate
treatment is examined under the three-part analysis first enunciated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Loeb
v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (requiring a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue).
Complainant has the initial burden of establishing a prima facie case
of discrimination. A prima facie case of discrimination based on age is
established where complainant has produced sufficient evidence to show
that: (1) he is a member of a protected class; (2) he was subjected to an
adverse employment action; and (3) similarly situated employees outside
his protected class were treated more favorably in like circumstance.
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. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation
is pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000).
The Commission finds that, assuming arguendo that complainant
established a prima facie case of age discrimination, the agency
articulated a legitimate nondiscriminatory reason for its action,
namely, complainant failed the medical screening. Specifically, the
record reveals that as a prerequisite for attending the JII class,
all students were required to be screened by the Health Screening Unit.
The record reveals that complainant was examined by FLETC Medical Director
who afterwards noted in complainant's physical assessment form that he
requires �modifications/restrictions� because complainant �must wear
Ace wrap to left knee during his exercises and no squatting or kneeling
more than 6 times during an hour.� The record also reveals that at the
end of the medical screening nine students between the two JII classes,
including complainant, were found to have conditions which would preclude
them from continuing class, out of forty-seven students.
The Commission further finds that complainant failed to show that the
agency's stated reason was a pretext for discrimination. Complainant
merely argued that he was able to do squatting and kneeling, but he
failed to rebut that passing the medical screening was a prerequisite
for attending the class. We find that the students were evaluated
at an improper level, because the Health Services Unit used the wrong
requirements, but, we do not find that the error was in a discriminatory
animus, against complainant's age.
Disability Discrimination Claim
In a claim alleging disability discrimination, complainant must establish
that he is an "individual with disability" within the meaning of the
Rehabilitation Act. See Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999). An "individual with a disability" is one who: (1)
has a physical or mental impairment that substantially limits one or
more major life activities; (2) has a record of such impairment; or (3)
is regarded as having such an impairment. 29 C.F.R.� 1630.2(g)(1)-(3).
Major life activities include caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. �1630.2(i). see also Thompson v. United States Postal
Service, EEOC Appeal No. 01971189 (August 31, 2000). Other major life
activities include, but are not limited to, sitting, standing, lifting and
reaching. See Appendix to Part 1630 - Interpretive Guidance on Title I of
the Americans with Disabilities Act (Interpretive Guidance), 1630.2(i).
Relevant considerations as to whether an individual is substantially
limited in a major life activity include the nature and severity of
the impairment, its duration or expected duration, and its permanent
or long term impact. 29 C.F.R.� 1630.2(j)(2)(i)-(iii). The Commission
also must consider any mitigating measures "both positive and negative
when judging whether [complainant] is 'substantially limited."' Sutton
v. United Airlines, 527 U.S. 471, 482 (1999).
Determinations regarding whether a complainant is an individual with a
disability must be made on a case-by-case basis. See Bragdon v. Abbott,
524 U.S. 624, 641-642 (1998). A complainant cannot be considered
an individual with a disability per-se, simply because she has been
diagnosed with a certain condition. See Sutton v. United Airlines,
527 U.S. 471, 483 (1999); Albertsons Inc., v. Kirkinburg, 527 U.S. 555,
565-566 (1999); Murphy v. United Parcel Service, 527 U.S. 516, 521-523
(1999). An individualized assessment "is particularly necessary when
the impairment is one whose symptoms vary widely from person to person."
Toyota Motor Mfg., Ky, Inc., v. Williams, 122 S. Ct. 681, 692 (2002).
Complainant must offer evidence to show the substantial nature of his
impairment. Id. at 692 (citations omitted).
The Commission finds that complainant failed to show that he is
an individual with a disability entitled to protection under the
Rehabilitation Act. Specifically, the record shows that during 1986,
complainant as a member of the armed forces stationed in Korea,
complainant heard a pop and felt a slight pain in his left knee.
The record also reveals that a doctor examined the knee, found no damage
and told him to refrain from running for a couple weeks, but he was
not given any medication, not did he have any pain or trouble since.
The record reveals that complainant admitted that he never considered
his knee as a disability because subsequently he frequently did push
ups, sit-ups and ran two miles. Therefore, we agree with the agency
that complainant did not establish that he had a physical or mental
impairment that substantially limits one or more major life activities.
In addition, complainant has not shown that she has a record of any other
impairment which substantially limits a major life activity, or was
regarded as having an impairment, as encompassed by the Commission
regulations. Accordingly, we do not find that complainant was an
individual with a disability. Accordingly, as complainant failed to
establish that he is an individual with a disability, we find that he
was not subjected to disability-based discrimination.
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 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
August 7, 2003
__________________
Date