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.