01984880
05-02-2001
Terry L. Greathouse, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, (Corps of Engineers), Agency.
Terry L. Greathouse v. Department of the Army
01984880
May 2, 2001
.
Terry L. Greathouse,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
(Corps of Engineers),
Agency.
Appeal No. 01984880
Agency No. AEGHFO9610G0110
DECISION
Terry L. Greathouse (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of disability (depression), in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
The appeal is accepted in accordance with 29 C.F.R. �1614.405. For the
following reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issue on appeal is whether complainant was subject to disability
(depression) discrimination when he was not selected for the position
of Lock and Dam Equipment Mechanic Leader, at the agency's Green River
facility.
BACKGROUND
The record reveals that at the time complainant filed the instant
complaint, he was employed as a Lock and Dam Operator at the agency's
Lock and Dam (L&D) in Cannelton, Indiana. In a fact finding conference
with the agency's EEO Investigator, complainant averred that he suffered
from anxiety, depression and uretal bowel syndrome.<1> He added that
due to his disability, he was denied career advancement opportunities.
In this regard, complainant contends that his former supervisor,
the Lockmaster at Cannelton L&D, relayed information regarding his
disability to the Selecting Official, Lockmaster of the Green River area
(hereinafter SO). Complainant contends that once his name was announced
as the only candidate for the L&D Equipment Mechanic Leader position,
the decision was made that he was not the right person for the job.
Consequently, complainant states that the vacancy announcement was
reopened for another ten days. Further, complainant states that an
employee from the Newburg L&D (hereinafter Selectee), was encouraged
to apply and was ultimately selected for the position. Moreover,
complainant contends that the Selectee's experience should not have been
a determinative factor on whether or not he got the job.
At the conclusion of the investigation, the agency informed complainant
of his right to request a hearing or a final agency decision (FAD).
On April 18, 1997, Complainant requested a hearing with an Administrative
Judge (AJ) of the EEOC. In a recommended decision dated, April 17, 1998,
the AJ held that complainant failed to carry his evidentiary burden to
prove that there was a causal connection between his disability and his
non-selection for the Mechanic Leader position. In a FAD dated May 12,
1998, the agency adopted the AJ's recommended finding of no disability
discrimination.
CONTENTIONS ON APPEAL
Neither complainant nor the agency raises any arguments or make any new
contentions on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws.
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 Committee for Mental Health for Jamaica Community 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 Transportation,
Inc., 2001 WL 292999, F.3d (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.
After reviewing the record as a whole, we are going to assume for the
purposes of this case only, that complainant has met the definition of a
qualified disabled employee as defined by the governing EEOC regulations.
See 29 C.F.R. �1630.2(g)(1). Moreover, we find that complainant has
established a prima facie case of disability discrimination because his
name was forwarded to the SO as a qualified candidate for the Mechanic
Leader position and the Selectee was ultimately selected for the position.
In light of the foregoing discussion, the burden of production shifts
to the agency to articulate a legitimate, non-discriminatory reason for
not selecting Complainant for the Mechanic Leader position.
In responding to the Investigator's query, the SO (no disability),
testified that he did not select complainant for the Mechanic Leader
position because he did not have as much practical experience as the
Selectee. Specifically, the SO averred that the Selectee was already
doing the job while complainant's experience was mainly theoretical.
Further, the SO testified that he was unaware of complainant's disability
when he made his selection and he denied that complainant's former
supervisor had called him to tell him of complainant's disability
or to suggest that he could get another list of qualified candidates
to consider for the position. In fact, the SO averred that when he
spoke to complainant's former supervisor, the supervisor told him that
complainant would be a good selection for the position. Finally, the
SO admitted that when he learned that only one candidate (complainant)
had applied for the Mechanic Leader position, he called the selectee and
three other Lock Operators and asked them why they did not apply for
the job. The SO indicated that he wanted a larger list of candidates
and he did not consider that he would be able to make a selection if
there was only one applicant for the position.
The Personnel Management Specialist (hereinafter PMS) who handled the
filling of the Mechanic Leader position also testified on behalf of
the agency. In her statement to the EEO Investigator, the PMS stated
that the first time the position was announced, only complainant applied
for the position and rather than send forward his name to the SO for
consideration, she re-advertised the position. The PMS stated that she
did discuss the matter with the SO prior to re-advertising the Vacancy and
the SO told her that he would like to consider more than one candidate.
At the EEOC hearing, the PMS stated that she asked the SO if he wanted
to re-advertise because: (1) the SO was not required to make a selection
from a list with less than three names on it, and (2) the fill time
of vacancies was bad, so she felt that the re-advertising option would
speed things up a bit. The PMS also testified that she was unaware of
complainant's disability at the time she handled the Vacancy and that
she never would have advised the SO to go out and solicit applicants
for the vacancy he was trying to fill.
Complainant's former first and second level supervisors also testified on
behalf of the agency. They both denied attempting to influence the SO in
making his selection or of having knowledge of complainant's disability.
They both also expressed the belief that the SO did not discriminate
against complainant due to complainant's disability. Moreover, the
first level supervisor (no disability), proferred that he never gave
complainant an unfavorable recommendation.
Based on the above discussion, we find that the agency articulated
legitimate nondiscriminatory reasons for not selecting complainant for the
Mechanic Leader position. Because the agency articulated a legitimate
nondiscriminatory reason for the challenged action, complainant must
demonstrate that this reason is pretextual and/or that the agency was
motivated by discriminatory animus when it denied his leave request. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981)
Assuming, arguendo, that complainant is accurate in his belief that
the agency did not comply with its standard operating procedures when
it filled the position in question, we find that unless complainant
can show that such non-compliance was due to discriminatory animus,
he cannot prevail on his allegation of discrimination. See Ruggles
v. California Polytechnic State University, 797 F.2d 782 (9th Cir. 1986).
Except for his assertion that he was subjected to disparate treatment,
and a conspiracy to keep him from advancing in the agency, complainant
presented no substantive evidence to show that the reason articulated
by the agency for its action was pretext for discrimination. In this
regard, we take cognizance of complainant's argument that the Selectee's
experience should not have been the determinative factor in deciding
who was the best qualified candidate for the Mechanic Leader position.
Judicial Courts have long held that an employer has the discretion to
choose between different, but equally desirable qualifications when
making a selection. See Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). In making a determination of discrimination, the
Commission has held that the trier of fact must look at the motivation of
the decision maker as opposed to the decision maker's business judgment.
See Dorothy Schaeffer v. Department of transportation, EEOC Appeal
No. 01A10518 (February 18, 2001); see also Wrenn v. Gould, 808 F.2d 493
(6th Cir. 1987) . In the case at hand, the Commission is unable to find
any discriminatory animus on the part of the SO or any of the other agency
officials involved in this case. Accordingly, the agency's finding of
no discrimination on the basis of disability is AFFIRMED.
CONCLUSION
Therefore, the agency's finding of no discrimination in the non-selection
of complainant for the Mechanic Leader position is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
5/02/01
__________________
Date
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
______________________________
1 It is noted that although complainant testified that he also suffered
from uretal bowel syndrome, the agency and complainant's representative
defined his claim as based on his mental disability only. In its FAD,
the agency expressly pointed out it was omitting uretal bowel syndrome
as a basis of the complaint and neither complainant nor his attorney
objected to this omission on appeal .