Preston L. Darkes, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionFeb 17, 1990
01970045 (E.E.O.C. Feb. 17, 1990)

01970045

02-17-1990

Preston L. Darkes, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Preston L. Darkes v. Department of Defense

01970045

February 17, 2090

Preston L. Darkes, )

Complainant, )

)

v. ) Appeal No. 01970045

) Agency No. DM9513

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. The appeal is accepted by the Commission in accordance with

the provisions of EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented is whether complainant has established by a

preponderance of the evidence that the agency discriminated against him

on the basis of perceived disability (obesity) when he was not allowed

to use a rappelling device and lanyard to perform the required safety

jump for him to qualify for a Hybrid Crane Operator's license because

his weight exceeded the 300-pound limit for the device.

BACKGROUND

In a complaint filed August 9, 1995, complainant, then a Materials Handler

(Equipment Operator), WG-6907-05, with the agency's Defense Logistics

Agency, alleged that the agency discriminated against him as delineated

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). Following the expiration of the time period to respond,

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). 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).

In order to establish a prima facie case of disability discrimination,

complainant must prove, by a preponderance of the evidence, that he was

treated differently than individuals not within his 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).

As a threshold matter, however, complainant must establish that he

is a "qualified individual with disability" within the meaning of

the Rehabilitation Act. The Act's implementing regulations defines

"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: self-care,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. ��1630.2(h), (i), (j).<1> 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 Commission finds that 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

because he is obese.<2> However, complainant has identified neither any

major life activity in which the agency believes him to be substantially

impaired, or any range or class of jobs from which the agency believes

him to be excluded. See, e.g., Sutton v. United Airlines, Inc., ___

U.S. ___, 119 S.Ct. 2139 (1999). The record reflects that the total

extent of complainant's limitation, as far as the agency was concerned,

was that complainant weighed too much to use the rappelling device and

lanyard to perform the required safety jump for him to qualify for a

Hybrid Crane Operator's license because his weight exceeded the 300-pound

limit for the device. 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.,

___ U.S. ___, 119 S.Ct. 2133 (1999). Accordingly, complainant cannot

establish that he is a "qualified individual with disability" within

the meaning of the Act, and therefore is not entitled to the Act's

protection.

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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

Feb. 17, 2090

DATE Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

1 Pursuant to the Rehabilitation Act Amendments of 1992, the

ADA's employment standards apply to all non-affirmative action

employment discrimination claims filed by Federal applicants or

employees with disabilities under section 501 of the Rehabilitation

Act. Pub. L. No. 102-569 �503(b), 106 Stat 4344 (1992) (codified as

amended at 29 U.S.C. �791(g) (1994)).

2 The record reflects that, at the time of the events in question,

complainant weighed about 340 pounds. The record does not reflect

complainant's height. Further, complainant acknowledges that he does

not have an actual impairment which substantially limits one or more of

his major life activities.