01A23756
09-04-2003
Lawrence C. Carter, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Lawrence C. Carter v. Department of Energy
01A23756
September 4, 2003
.
Lawrence C. Carter,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A23756
Agency Nos. 98-004-HGHR; 98-057-HQHR
Hearing No. 100-A1-7546X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
In his first formal complaint, filed October 3, 1997, complainant
alleged that he was discriminated against on the bases of race (Black)
and color (black), in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and on the
basis of age (D.O.B. 01/30/47) in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., when:
(1) he was not selected for the position of Contract Specialist. In his
second formal complaint, filed March 4, 1998, complainant alleged that he
was discriminated against based on reprisal for prior EEO activity, and
discriminated against on the basis of disability in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. when: (2) he was denied reasonable accommodation
when his handicap parking space in the Forrestal Garage was revoked.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ initially consolidated the
two complaints and subsequently issued a decision without a hearing,
finding no discrimination. The agency failed to issue a final order
within 40 days of receipt of the AJ's decision in accordance with 29
C.F.R. � 1614.110. Therefore, the AJ's decision became the final action
of the agency. 29 C.F.R. � 1614.109(i). Complainant then appealed the
decision to the Commission. In Carter v. Department of Energy, EEOC
Appeal No. 01A05026 (February 16, 2001), the Commission found that the
AJ erred in issuing a decision without a hearing. The Commission vacated
the agency's final action, and remanded the matter for a hearing. After
conducting a hearing, the AJ again made a finding of no discrimination.
The agency implemented the AJ's decision in its final order. It is from
that decision that complainant now appeals.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We begin by addressing issue (1). To prevail in a disparate treatment
claim such as this, complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 256 (1981).
We will assume arguendo that complainant established a prima facie case of
discrimination on the alleged bases. The agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant; namely,
complainant's name was not referred for selection because he received
a lower score than the other candidates. Additionally, complainant
was an �acceptable� candidate, but not an �outstanding� candidate for
the job. See Hearing Transcript (HT) at 104-105. Although complainant
has attempted to establish pretext, we find no probative evidence in
the record to indicate that the selection process was motivated by
management's discriminatory animus. We note that the agency has broad
discretion to set policies and carry out personnel decisions, and should
not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). Complainant may be able to establish
pretext with a showing that his qualifications were plainly superior
to those of the selectee. Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). In the instant case, complainant has not demonstrated
that his qualifications rise to the level of being plainly superior to
those of selectees.
We now address issue (2). A federal agency must make reasonable
accommodation to the known physical or mental limitations of a qualified
employee with a disability unless the agency can demonstrate that
the accommodation would impose an undue burden on the operation of
its program. 29 C.F.R. �� 1630.2(o) and (p). In the instant case,
complainant contends that he needed the handicap parking space in the
Forrestal Garage because he needed to have accessibility to move out
of the garage (without being blocked in by other vehicles) to visit
a physician for doctor's appointments regarding his back condition.
Complainant additionally contends that he needed the parking privilege
because if, due to his diabetes, he should have a sugar attack, he
would need to have accessibility to move in and out of the garage.
See HT at 71-72. However, complainant later admitted that it would not
be responsible of him to drive at all if he were having a sugar attack
since he could succumb to a coma or pass out. Id. On July 31, 1997,
complainant submitted a letter from his doctor requesting that complainant
be granted a handicapped parking pass, stating that complainant suffered
from an �acute cervical and lumbosacral strain superimposed on a chronic
lumbar strain and cervical radicular symptoms bilaterally.� Report of
Investigation (ROI), Ex. 2, Attach. 4.
Even assuming complainant is an individual with a disability pursuant
to the Rehabilitation Act, the AJ's finding that complainant failed
to establish that the reasonable accommodation that he requested was
related to his disabilities, is supported by substantial evidence in
the record. We, therefore, are not persuaded that the agency violated
the Rehabilitation Act.
To the extent that complainant contends that the revocation of his
handicapped parking pass constitutes disparate treatment based on reprisal
for prior EEO activity, we note that the record reveals that on April 28,
1997, the agency's Parking Committee sent a memorandum to all individuals
(including complainant) with handicap parking permits in the Forrestal
Garage, requesting that they submit by May 16, 1997, detailed medical
documentation to support a renewal of their handicapped parking permits.
The record further reveals that complainant failed to respond to this
memorandum by the specified deadline. Complainant has not established
that he was treated less favorably than individuals outside of his
protected class, or that the agency took this action against him due to
retaliatory animus.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order. In so
finding, we note that assuming arguendo complainant is an individual
with a disability, the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
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
September 4, 2003
__________________
Date