Jose R. Crespo, Complainant,v.Hector V. Barreto, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionOct 2, 2003
01A23940 (E.E.O.C. Oct. 2, 2003)

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