01986178
05-16-2000
I. Bruce McMillian, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
I. Bruce McMillian v. Department of Housing and Urban Development
01986178
May 16, 2000
I. Bruce McMillian, )
Complainant, )
) Appeal No. 01986178
v. ) Agency No. AT-95-08
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination on
the bases of race (African-American), sex (Male), reprisal (prior EEO
activity), and mental disability (somatic and emotional), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether complainant established by preponderant
evidence that the agency discriminated against him on the bases of
race, sex, mental disability, and reprisal,<2> when the agency failed
to provide him a reasonable accommodation.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
in the Fair Housing Enforcement Division, Branch A. Complainant alleged
that on May 6, 1994, he gave management a note from his psychiatrist.
The note stated that complainant has been receiving treatment for
somatic and emotional problems and that he appeared to be experiencing
difficulties related to stress. Complainant's physician strongly
recommended that complainant be transferred to another division and
placed under different management to aid his recovery. The agency did
not respond to his request.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on April 25, 1995.
Complainant also alleged that the agency only responded to his request
after he initiated his complaint. Complainant was reassigned from his
previous position to the Enforcement Division, Investigations Branch,
however, this reassignment was a result of changes within the agency
rather than his request for accommodation. At the conclusion of the
investigation, complainant requested that the agency issue a final
agency decision.
The FAD concluded that complainant established a prima facie case of
racial discrimination, however, it also determined that complainant
failed to establish prima facie cases of sex, reprisal and disability
discrimination. The FAD further determined that management provided
legitimate, nondiscriminatory reasons for its action and complainant
failed to establish that management's reasons were pretext for
discrimination. Accordingly, the FAD concluded that complainant failed
to show that the agency's action was discriminatory. Complainant's appeal
is from this decision.
ANALYSIS AND FINDINGS
Generally, discrimination claims are examined under the tripartite
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). Complainant 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 Constr. Corp. v. Waters, 438 U.S. 567
(1978). Next, the agency offers rebuttal to complainant's inference of
discrimination by articulating a legitimate, nondiscriminatory reason
for its action(s). See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met
its burden, the complainant bears the ultimate burden to persuade the fact
finder by a preponderance of the evidence that the reasons offered by the
agency were not the true reasons for its actions but rather were a pretext
for discrimination. St. Mary's Honor Cent. v. Hicks, 509 U.S. 502 (1993).
Reasonable Accommodation Claim
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1630.9(a).<3>
Complainant must first establish a prima facie case by showing that he is
an individual with a disability, as defined by 29 C.F.R. � 1630.2(g). That
is, complainant must first establish that he is a member of the class of
persons protected by the Rehabilitation Act, i.e., a qualified individual
with a disability.
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 an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
EEOC Regulation 29 C.F.R. � 1630.2(i).
Upon review of the record, we find that complainant demonstrated that
he has mental impairments as evidenced by the accommodation request from
his physician, but failed to establish that those impairments affect and
substantially limit a major life activity. The Commission finds that
complainant failed to provide any evidence to demonstrate the extent
of his impairments or to describe the effects of the impairments on his
ability to function. Complainant only offered his psychiatrist's note and
averred that his mental conditions cause symptoms such as headaches and
dizziness. Complainant failed to provide any other evidence to explain
the extent of his conditions or how the conditions affects him.<4>
The Commission finds that complainant failed to demonstrate that his
impairments substantially limit a major life activity. Further, the
Commission notes that complainant did not demonstrate that he has a record
of an impairment which substantially limits a major life activity or
that the agency regarded him as having such an impairment. Accordingly,
the Commission finds that complainant failed to establish that he is a
qualified individual with a disability under the Rehabilitation Act.
Sex, Racial, and Reprisal Discrimination Claims
The Commission now turns to complainant's claim that management delayed
its review of his accommodation request and subsequently denied such
a request because of his sex, race, and in reprisal for his protected
activity. Although the initial inquiry in a discrimination case usually
focuses on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether he or she has
demonstrated by preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id. See also
Aikens, 460 U.S. at 714-717.
Upon review of the record, the Commission finds that the agency
articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the agency argued that complainant failed to provide
adequate medical evidence in order for the agency to grant his request
for an accommodation. Further, the agency stated that the reason for
its delay in their response was due to restructuring of the agency
which delayed its response to complainant's request. Therefore, the
burden shifts to complainant to establish that the agency's reasoning is
pretext for discrimination. Upon review of the record, the Commission
finds that complainant was unable to show that the agency's reasons were
a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 16, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2 The record indicates that complainant previously filed an EEO complaint
(Agency No. AT 94-10).
3 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
4 The Commission also notes that the agency requested medical
documentation in order to evaluate complainant's accommodation request.
However, complainant refused to provide additional information.