0120083391
12-24-2008
Mark L. Arnold, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Mark L. Arnold,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120083391
Agency No. 9V1M07414F08
DECISION
On July 22, 2008, complainant filed an appeal from the agency's June
17, 2008, final order concerning his equal employment opportunity (EEO)
complaint claiming unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
During the period at issue, complainant worked as a Painting Worker,
WG-4102-07,1 in the Paint Unit, Services Section, E-3 Services Branch,
Aircraft Production Division, 566th Aircraft Maintenance Squadron at
Tinker Air Force Base, Oklahoma.
On October 12, 2007, complainant filed an EEO complaint. Therein,
complainant claimed that he was discriminated against on the bases of
disability (osteoarthritis and degenerative disc disease) and age (58)
when:
1. he was suspended from June 10-23, 2007, for failing to comply with
directives on March 28, 2007; and
2. on October 4, 2007, he received a Notice of Decision to Suspend
from October 4-17, 2007, for loafing in a sleeping position and for
unauthorized absence on May 16, 2007.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b), finding no discrimination.
The FAD found that complainant established that he was an individual with
a disability, noting that he was substantially limited in the major life
activity of standing. Further, the FAD found that complainant dies not
prove that he was a "qualified" individual with a disability during the
time period in question. The FAD next found that management proffered
a legitimate, nondiscriminatory reason for issuing the discipline in
issue (1). Specifically, management testified that on March 28, 2007,
complainant failed to follow directives to appear "clean-shaven" for his
scheduled annual physical tests. The FAD found that complainant made
several arguments in an attempt to establish a discriminatory motive,
but was unsuccessful.
The FAD then addressed issue (2), finding that on May 16, 2007,
complainant's supervisor observed complainant sleeping, just prior
to the first break. Therefore, complainant was issued a suspension.
The FAD noted that complainant claimed that it was his break time when he
was sleeping. Nevertheless, the FAD concluded that the record contains
no evidence of a discriminatory animus on the part of management.
Complainant raises no new arguments on appeal. The agency requests that
we affirm the FAD.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Here, assuming complainant was an individual with a disability and that
he otherwise could establish a prima facie case of discrimination on the
alleged bases, the agency has articulated legitimate, nondiscriminatory
reasons for the suspensions at issue. Complainant contends that
the suspensions were too harsh and unjustified, and that he was near
retirement age and management did not want him around. Complainant
also contends that he should not even have had to take the fit test
because he was on permanent restrictions.2 However, complainant
has not established by a preponderance of the evidence, that age or
disability-based discrimination motivated the actions in question. In so
finding, we note that we do not have the benefit of an AJ's findings
after a hearing, as complainant chose a FAD instead, and so we can only
evaluate the facts based on the weight of the evidence presented to us.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 24, 2008
__________________
Date
1 At the relevant time, complainant was not able to perform the duties
of his official position, and had been on light duty in the break room
since 2007.
2 We note that the question of whether complainant was subjected to an
improper medical examination within the meaning of the Rehabilitation
Act is not currently before the Commission. The issues are limited to
whether management was motivated by an intent to discriminate against
complainant because of age or disability when complainant was suspended
on two occasions.
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0120083391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036