01A10928
03-06-2003
Renee Williams, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Renee Williams v. Department of Justice
01A10928
March 6, 2003
.
Renee Williams,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A10928
Agency No. I-98-4016
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e 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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
During the relevant time, complainant was employed as a GS-5, Immigration
Inspector Trainee, at the agency's District of Miami Inspections Branch
facility. Complainant states that on the morning of November 20, 1997,
she injured both of her arms during a physical training exercise in which
she was required to handcuff an individual who was resisting and being
non-compliant. Complainant contends that although she was injured and
in pain, she reported to a firearm test scheduled for that afternoon.
Complainant also contends that while she informed an instructor of her
injury, she did not have the opportunity to mention the injury to her
firearm instructor (F1). Complainant stated that she proceeded to take
the test because she was under the impression that failure to participate
in the firearms test would result in removal from the agency.
Complainant contends that she made F1 aware of her injury immediately
following the test. According to complainant, F1 replied that she was
there to qualify. F1 denied recalling complainant mentioning an injury
or having any knowledge of it prior to her termination. Complainant also
contends that her injury was visible and that on the evening of November
20, 1997, individuals noticed that her right shoulder was swollen.
Complainant asserts that her score on the firearms qualification was not
a fair indication of her ability as evidenced by the fact that several
days prior to her injury, she had achieved a passing score during a
practice session. Complainant also alleged that an injured male trainee
did not participate in a different practice session and was not removed
from the program.
Complainant further contends that after confronting a White male
instructor who made derogatory comments about females, she found
herself being criticized by instructors for minor things. For example,
complainant stated that on one occasion, F1 pulled her out of class and
accused her of lying about having to leave work the prior day to pay her
car insurance. F1 stated that he only questioned complainant because he
had noticed her on the softball field, and did not pursue the matter after
complainant replied that she went to the field after paying the insurance.
Complainant contends that, on November 21, 1997, the date of her
termination, the Class Coordinator (C1) discriminated against her by
failing to inform her of her right under the laws of the Office of
Workers' Compensation Programs (OWCP) to complete a Federal Employee's
Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation
Form (Form CA-1). Complainant also contends that C1 failed to inform her
of her right to request an exemption from the firearms test. Complainant
asserts that C1 was eager to terminate her because she was outspoken in
class and that White males would not be objected to for being outspoken.
On December 18, 1997, complainant sought EEO counseling claiming that she
was discriminated against on the bases of race (African-American), sex
(female), and disability (injured arm) when she was terminated after
failing to pass the firearm test and was denied information regarding
OWCP benefits and test exemptions. On March 30, 1998, after efforts to
resolve the claims through counseling proved unsuccessful, complainant
filed two complaints of discrimination, adding a claim that the agency's
officials discriminated against her based on her disability when they
denied her OWCP guidance.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing but later withdrew the request and instead
requested that the agency issue a final decision.
In its decision, the agency concluded that in regard to complainant's
claim of disability discrimination, that her arm injury was transitory
in nature and, therefore, complainant was not an individual with a
disability. The agency also found that the management officials were not
aware of complainant's injury prior to her termination. In regard to
complainant's race and sex discrimination claim, the agency found that
there was no evidence in the record that a similarly situated trainee,
not within complainant's protected classes, was retained after failing to
pass the firearm test. On appeal, complainant makes no new contentions.
The agency requests that we affirm its FAD.
In order to prevail on her claim of disability discrimination, complainant
must establish that she is an �individual with a disability� within the
meaning of the Rehabilitation Act. An �individual with disability� is
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, i.e., caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. � 1630.2(g) - (i). An impairment is substantially
limiting when it prevents an individual from performing a major life
activity or when it significantly restricts the condition, manner, or
duration under which an individual can perform a major life activity.
29 C.F.R. � 1630.2(j). The individual's ability to perform a major life
activity must be restricted as compared to the ability of the average
person in the general population to perform the activity. Id.
In the instant case, the Commission finds that complainant failed
to establish that she is an individual with a disability. Although
complainant did not make F1 aware of her injury until after the firearms
test, an agency medical officer examined her the next day, November 21,
1997, and determined that there was no need for any follow-up treatment
for complainant's forearm strain. In addition, a second physician
who also examined complainant, indicated that she had incurred muscle
strains and, as with the medical officer's diagnosis, determined that
the strains did not constitute a permanent injury.
Although the initial inquiry of discrimination in a claim alleging
race and/or sex discrimination case usually focuses on whether the
complainant has established a prima facie case, following this order of
analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,
the inquiry shifts from whether the complainant has established a
prima facie case to whether she has demonstrated by preponderance of
the evidence that the agency's reasons for its actions merely were a
pretext for discrimination. Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
After a careful review of the record, we find that the agency correctly
concluded that complainant failed to establish a prima facie case of race
and/or sex discrimination. The Commission notes that, even assuming,
arguendo, complainant established a prima facie case of discrimination,
the agency articulated legitimate nondiscriminatory reasons for its
actions, i.e. that complainant was removed from the agency because she
was a probationary employee who failed to achieve a passing score on a
firearm test. We also find that complainant has presented no evidence
that other employees similarly situated were treated more favorably.
Although complainant contends that a male trainee was treated more
favorably, the record evidence establishes that all trainees who failed
to meet any of the agency's requirements were removed.
While complainant generally alleges that females and minorities were more
closely scrutinized and criticized for minor things, the record indicates
that it was complainant's failure to bring her injury to the attention
of F1 prior to failing the firearm examination that affected the agency
officials' view of the credibility of her excuse. We further note that
complainant twice received remedial firearms training designed to assist
her in achieving a passing score and that complainant knew that successful
completion of the agency's firearm test was a requisite part of the
program, as evidenced by her signature on the agency's Training Agreement.
In regard to not receiving the OWCP forms, the Commission again notes
that complainant did not notify agency officials that she had experienced
an injury until after her termination. The record evidence establishes
that after complainant was terminated, the agency's Labor Relations
Specialist instructed her to call the Department of Labor in regard to
OWCP benefits and forms.
Complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discriminatory animus.
Therefore, after a careful review of the record, including complainant's
contentions, the agency's response, and arguments and evidence not
specifically addressed in this decision, we affirm the agency's final
decision.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 6, 2003
__________________
Date