01970190
07-14-2000
Jonathan P. Flowers, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Jonathan P. Flowers v. Department of Defense
01970190
July 14, 2000
Jonathan P. Flowers, )
Complainant, )
)
v. ) Appeal No. 01970190
) Agency No. XL96010
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Rehabilitation Act of 1973, 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 by the Commission
in accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether complainant has established by a
preponderance of the evidence that the agency discriminated against him on
the bases of physical disability (perceived diabetes) and age (54): (1)
with regard to the termination of his overseas deployment to a militarized
zone, in that on December 19, 1995, he was required to seek treatment for
sores on his legs; on December 21, 1995, he was required to see a medic
and a doctor; and on December 22, 1995, he was informed of the decision
to end his temporary deployment to a militarized zone in Bosnia and of
an appointment that was being made for him at Ramstein Air Force Base
Clinic; and (2) in that the foregoing conduct constituted harassment.
BACKGROUND
In a complaint dated January 17, 1995, complainant, then a Property
Administrator, GS-1103-11, with the agency's Defense Logistics Agency,
alleged that the agency discriminated against him as set forth in the
above-entitled statement, �Issue Presented.� The agency conducted an
investigation, provided complainant with a copy of the investigative
report, and advised complainant of his right to request either a hearing
before an EEOC administrative judge (AJ) or an immediate final agency
decision (FAD). Complainant requested an immediate FAD. On September
11, 1996, the agency issued a FAD finding no discrimination. It is from
this decision that complainant now appeals.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur. The burden then
shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination.
Id. at 257. 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 Commission notes that, with regard to complainant's claim of age
discrimination, complainant has submitted no evidence whatsoever from
which the Commission might infer that age discrimination had occurred.
Complainant has not identified any person outside of his protected age
group or substantially younger than complainant whom he alleges received
preferential treatment, nor has complainant adduced any evidence of
age-discriminatory animus on the part of any agency official or employee
involved in the events at issue in his complaint. Accordingly, the
Commission will confine the remainder of its analysis to complainant's
claim of disability discrimination.
In order to establish a prima facie case of disability discrimination,
complainant must prove, by a preponderance of the evidence, that he was
treated unfavorably on account of his membership in the protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of complainant. See Sisson v. Helms,
751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
The Rehabilitation Act's implementing regulations define �individual
with disability� as a person who has, has a record of, or is regarded as
having a physical or mental impairment which substantially limits one or
more of that person's major life activities, which include, but are not
limited to, self-care, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. ��1630.2(h),
(i), (j).<2> The regulations define a �qualified individual with
disability� as a person �who, with or without reasonable accommodation,
can perform the essential functions of the position in question ....�
29 C.F.R. �1630.2(m).
The agency contests complainant's coverage under the Rehabilitation
Act, arguing that complainant is not an �individual with disability.�
The Commission finds that, in fact, complainant has not established
that he is an �individual with disability� within the meaning of the
Rehabilitation Act. Complainant alleges that the agency perceived him
as being disabled by virtue of having diabetes.<3> It does appear from
the record that the agency perceived complainant as having diabetes.
However, complainant has identified neither any major life activity in
which the agency believes him to be substantially impaired, nor any range
or class of jobs from which the agency believes him to be excluded.
See, e.g., Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).
The record reflects that the total extent of complainant's limitation,
as far as the agency was concerned, was that complainant was not a
suitable candidate for temporary deployment to a militarized zone in
Bosnia. There is simply no evidence to support a finding that the agency
regarded complainant as substantially impaired in any major life activity.
See id.; Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).
Accordingly, complainant cannot establish that he is an �individual with
disability� within the meaning of the Act, and therefore is not entitled
to the Act's protection.
An employer who creates or tolerates a work environment which is
permeated with "discriminatory intimidation, ridicule, and insult" that is
"sufficiently severe or pervasive to alter the conditions of the victim's
employment" violates Federal anti-discrimination laws. See, e.g., Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993) (harassment in violation
of Title VII). In this case, given that the Commission has found that
complainant is not entitled to protection under the Rehabilitation
Act and that he has not submitted evidence sufficient even to raise an
inference of age discrimination, complainant cannot establish that the
agency's actions constituted discriminatory harassment.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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:
July 14, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
1On 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.
2The 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.
3The record contains conflicting information whether complainant in fact
has any type of identifiable medical condition. Complainant maintains,
however, that he has neither diabetes nor any other type of blood sugar
condition.