01A23940
10-02-2003
Jose R. Crespo, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Jose R. Crespo v. Small Business Administration
01A23940
October 2, 2003
.
Jose R. Crespo,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A23940
Agency No. 09-00-024
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Loan Officer at the agency's Area 1 Office in Niagara
Falls, New York. Complainant's supervisor (S1) stated that complainant
was hired as a Loan Officer in October of 1998. The record reveals that
complainant suffered a Cerebral Vascular Accident on October 15 and 16
of 1999. Complainant stated that he returned to his regular duties and
requested reassignment outside of the Loan Department where he worked
to work in personnel or administration but was not granted the request.
In a medical statement dated November 15, 1999, complainant's physician
stated that complainant could return to work for up to eight hours a
day and six days a week.
Complainant's second line supervisor (S2) stated that she offered him a
less strenuous position with Customer Service. Complainant, she stated,
initially declined the offer but later accepted the position. Thereafter,
complainant was transferred to Customer Service in the Loan Department.
The S2 stated that after one week, complainant was assigned to a group
processing home loans but was not required to meet production standards.
She further stated that after he presented additional medical statements
from his physician, he was placed on light duty in January of 2000.
S2 stated that in February of 2000, complainant met with her stating
that he was tired and not feeling well. She stated that he wanted
to know if he could be laid off for lack of work because the workload
was diminishing. She stated that he was concerned about being able to
collect unemployment and she told this to her first line supervisor,
the Deputy Area Director.
The Director stated that he prepared a letter of settlement for
complainant to sign which provided for the expiration of complainant's
term of employment and would allow him to apply for unemployment benefits.
He noted that complainant's performance had not been at the fully
successful level and that this was noted in the settlement agreement
because a favorable rating would have unjustly increased his chances
of being rehired by the agency. Thereafter, he stated that complainant
was released.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 12, 2000, alleging that he was discriminated
against on the basis of disability and in reprisal for prior EEO
activity when:
he was denied a six month leave of absence; and,
he received a minimally successful performance evaluation in the proposed
letter of settlement after he requested to be laid off.
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 complainant was not discriminated against
because of his disability or in reprisal for prior EEO activity.
On appeal, complainant contends that he requested a reasonable
accommodation for a less stressful area when he returned from sick
leave on November 1, 1999. As a result of being placed in the same
work environment, he asserts that he was unable to recuperate from his
cerebral vascular accident. The agency requests that we affirm its FAD.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, complainant must
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. 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). If the agency is successful, then the complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
Additionally, to establish a prima facie case of disability discrimination
under a theory of disparate treatment and/or a failure to accommodate
theory (complainant does not have to prove (3) under a theory of
reasonable accommodation) under a theory of reasonable accommodation)
complainant must demonstrate that: (1) he is an "individual with a
disability" as defined in 29 C.F.R. � 1630.2(g); (2) he is a "qualified
individual with a disability" as defined in 29 C.F.R. � 1630.2(m); and
(3) he was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination and/or denied
an accommodation. Carney v. Federal Deposit Insurance Corporation,
EEOC Appeal No. 01986113 (August 3, 2000) (citing Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981)).
With respect to complainant's claim of retaliation, complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
With respect to issue 1, three management witnesses stated that
complainant did not request a leave of absence. Complainant's managers
stated that he never requested a leave of absence and he failed to
produce any corroborating evidence to show that he made such a request.
Concerning issue 2, the record shows that, in accordance with
complainant's request to secure unemployment benefits, the agency proposed
a settlement agreement that would enable him to apply for unemployment
benefits. The agency gave him a minimally successful rating because his
performance was poor, and it did not want him to have an unfair advantage
if he were to reapply for a position with the agency. Complainant refused
to accept the settlement agreement because of the rating, and the agency
released him in accordance with the request he made to S2.
Assuming arguendo that complainant is an individual with a disability
within the meaning of the Rehabilitation Act, complainant has not
established that there was an accommodation that would have enabled
him to perform the essential functions of the position he occupied
before the cerebral vascular accident or that there was a vacant funded
position, the essential functions of which he could perform, with or
without reasonable accommodation, for which he was qualified and to
which he could have been reassigned. Accordingly, we decline to find
that complainant is a qualified individual with a disability within
the meaning of the Rehabilitation Act. Thus, his claim of disability
discrimination, under both a theory of disparate treatment and of denial
of accommodation, fails.
Finally, we find that complainant has failed to establish a nexus
between his prior protected activity and his minimally successful
performance rating. Complainant thus fails to establish a prima facie
case of retaliation. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 2, 2003
__________________
Date