01971182
06-09-1999
Richard A. Frantz, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Richard A. Frantz, )
Appellant, )
) Appeal No. 01971182
v. ) Agency No. 95-56-0296
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of � 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. Appellant alleges that he
was discriminated against on the basis of physical disability (vision and
hearing impairments) when he did not receive a career ladder promotion.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Management and Program Analyst, GS-343-9, in the Statistical Analysis
Division, Office of Patent Publication, at the agency's Patent and
Trademark Office. Believing he was discriminated against as referenced
above, appellant sought EEO counseling and subsequently filed a complaint
on May 9, 1995. The agency accepted the complaint for processing,
and at the conclusion of the investigation, appellant was granted
thirty days to request a hearing before an EEOC Administrative Judge.
Appellant failed to request a hearing within the thirty day time period.
Thereafter, the agency, in accordance with 29 C.F.R. � 1614.110, issued
a final decision finding no discrimination.
The FAD concluded that appellant established a prima facie case of
disability discrimination when he demonstrated that he was a qualified
person with a disability who was treated differently than similarly
situated, non-disabled employees with respect to career ladder promotions.
However, the FAD ultimately found that appellant failed to establish
that the agency's legitimate, nondiscriminatory reason for not promoting
appellant was a pretext for unlawful discrimination. It is from this
decision appellant now appeals. On appeal, appellant raises no new
contentions. The agency did not submit a statement.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253-256 (1981); and Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981), we agree with the agency that appellant
failed to present evidence that more likely than not, the agency's
articulated reason for its action was a pretext for discrimination.
In reaching this conclusion, we note that appellant's supervisor stated
that appellant was not promoted because he failed to demonstrate he could
perform successfully at the GS-11 grade level in so far as he did not have
the knowledge, skills and abilities and because the work he performed at
the GS-9 level required monitoring and critical scrutiny.<2> Appellant's
supervisor stated that the non-disabled employees who were promoted
demonstrated that they had the skills to successfully perform assignments
of a broader and more complex scope, independently and responsibly.
Appellant's supervisor provided two specific examples of computer
projects specifically assigned to provide appellant an opportunity to
perform at the GS-11 level. In both instances, appellant asked that
the projects be reassigned because they were beyond his capabilities and
not of particular interest to him. On a third project, a compensation
model, appellant's supervisor stated that appellant failed to validate
data and did not demonstrate an understanding of the significance of
the information he was manipulating. After unsuccessfully attempting
to have appellant validate the data, appellant's supervisor would have
to delegate the responsibility for acquiring accurate data to another
employee. In response to appellant's assertion that he was not promoted
because his disabilities made face to face meetings with his supervisor
infrequent, his supervisor stated that on average, through their E-mail
correspondence, appellant received more guidance than did other members
of the staff.
In conclusion, we find that appellant has not submitted credible evidence
to support a finding that management's assessment of his work performance
is inaccurate. The record establishes that appellant did not take
initiative to improve his GS-9 performance and did not take advantage of
management's efforts to help him demonstrate that he could independently
handle GS-11 level assignments. The record also establishes that the
similarly situated, non-disabled employees who received career ladder
promotions, demonstrated both the ability and willingness to perform
at the GS-11 level. Accordingly, we find that appellant has failed to
prove that the agency's explanation for not promoting him was a pretext
for disability discrimination. Therefore, after a careful review of the
record, including arguments and evidence not specifically addressed in
this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 During the investigation, appellant
expressed his desire to drop an allegation regarding an AWOL charge.
Although this issue was noted by the EEO counselor and subsequently
addressed by the EEO investigator, it was not raised in appellant's
formal compliant, and review of the record establishes that it
has no bearing on the issue of promotion.
2 To the extent appellant asserts that he could not complete certain
assignments without further accommodation, management states that
the agency had reasonably accommodated appellant, albeit, at times,
with delay. The evidence in this record does not support a finding
that appellant formally requested a reasonable accommodation which the
agency denied. Accordingly, if appellant believes he has been denied
a reasonable accommodation, he is advised to seek EEO counseling.