01975128
02-10-2000
Terry L. Mohney, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Terry L. Mohney v. Department of the Navy
01975128
February 10, 2000
.
Terry L. Mohney,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01975128
Agency No. 9565923015
Hearing No. 140968021X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of sex (male), reprisal (prior EEO activity),
and physical disability (right knee condition), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791,
et seq.<1> Complainant claims that he was discriminated against when
the agency terminated his employment on January 17, 1995. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the reasons that
follow, the agency's decision is AFFIRMED.
The record reveals that during the relevant time complainant's
employment consisted of a limited, non-status, temporary appointment to
a WG-8 Power Support Equipment Repairer position at the agency's Naval
Aviation Depot in Cherry Point, North Carolina. During this appointment,
as well as during another temporary appointment immediately preceding
it, complainant had sustained seven on the job injuries, including
four right knee injuries. After each injury complainant was detailed
to a less physically demanding position until he recovered and was
able to resume performing the duties of the position for which he was
hired. While complainant was working in one of these lighter details
as a consequence of his fourth right knee injury, the Division Director
(DD) informed complainant that his temporary appointment was terminated
because it was apparent that he was physically incapable of performing
the duties for which he was hired.
Complainant filed a formal EEO complaint with the agency on March
3, 1995, alleging that the agency had discriminated against him as
referenced above. At the conclusion of the investigation, complainant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). The AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of sex discrimination because he failed to demonstrate that
similarly situated employees not in his protected classes were treated
differently under similar circumstances. In fact, the AJ pointed out that
the comparative employees included a female who was also terminated from
her temporary position when she became physically incapable of performing
her duties.
The AJ also held that complainant did not establish a prima facie
case of reprisal because although the record showed that complainant
had previously engaged in the EEO process concerning a matter which was
informally resolved, and that DD was aware of the situation, the requisite
"time and manner" element had not been demonstrated. Specifically, the AJ
found that the record was devoid of any evidence to suggest a connection
or "nexus" between the prior activity and the alleged discrimination,
noting that DD had no involvement in the prior EEO situation.
Additionally, the AJ found that complainant failed to establish a prima
facie case of disability discrimination because he failed to show that
he was a "qualified person with a disability" within the meaning of
the Rehabilitation Act.<2> The AJ concluded that complainant's medical
evidence did not establish that his right knee condition substantially
limited a major life activity, or that he was regarded by as having such
a disability, or had a record of such a disability.
The AJ went on to observe that even if complainant had established a
prima facie case of disability discrimination, the agency articulated
a legitimate nondiscriminatory reason, namely that complainant was
terminated because he was physically unable to perform the duties of the
limited temporary position for which he was specifically hired. The AJ
further noted that the record was completely devoid of any evidence to
show that this reason was merely a pretext for discrimination.
The agency's FAD adopted the AJ's RD. Complainant makes no new contentions
on appeal, and the agency requests that we affirm the FAD.
Our review of the record shows that the complainant failed to produce
any evidence to support even the inference that DD's decision was the
result of discriminatory animus based on sex or reprisal.
Accordingly, we concur with the AJ's RD, and AFFIRM the FAD's finding
of no sex discrimination or reprisal.
With respect to the AJ's prima facie disability determination,
we note that the Rehabilitation Act only prohibits discrimination
against qualified individuals with disabilities. Thus, in order to
establish disability discrimination, complainant must first show that
he is a qualified individual with a disability. See Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981). Pursuant to 29
C.F.R. �1630.2, an individual with a disability is one who (1) has an
impairment which substantially limits one or more major life activities,
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. Major life activities include caring for one's self,
performing manual tasks, walking, seeing, breathing, learning, and
working. 29 C.F.R. �1630.2(i). A qualified individual with a disability
is one who can perform the essential functions of the job with or without
an accommodation. Bradley v. U.S. Postal Service, EEOC Appeal No. 01962747
(October 22, 1998)
In support of his disability claim, complainant submitted outpatient
treatment notes from a Department of Veterans' Affairs medical facility
reflecting, in pertinent part, the treatment he received subsequent to
his on the job right knee injuries. In each instance it appears that
complainant's knee "popped out" when engaging in strenuous activity at
work. The last outpatient treatment note prior to his termination, dated
in October 1994, reveals that complainant complained that his right knee
"buckled" when pushing a hydraulic unit. Physical examination showed no
effusion, but pain on extension and midpoint tenderness. Complainant
was treated with medication and with instructions to elevate the knee
while at home. A follow-up appointment the next day showed no change in
symptoms, and there were no further treatment notes of record to show
the course of recovery. However, prior treatment for similar right knee
injuries consistently resulted in good recovery, with outpatient records
showing only some tenderness, but full range of motion. No difficulty with
ambulation was noted both before and after treatment. According to DD,
complainant was detailed to lighter duty during these recovery periods,
and then returned to his usual duties, which required arduous physical
activity, whereupon he would re-injury his knee. Outpatient treatment
notes confirm this scenario.
Based on this evidence, we find that the right knee condition does not
substantially limit a "major life activity" under the above definition,
because the outpatient treatment records show that complainant is able to
ambulate without difficulty even during active symptomatology, and that
the knee responds to treatment after re-injury, with only some residual
pain and tenderness. 29 C.F.R. �1630.2(i). Accordingly, we concur with
the AJ that complainant failed to show that his knee injury substantially
limited him in a "major life activity," so that he is not a "disabled
individual" entitled to the protection of the Rehabilitation Act.
Furthermore, we concur with the AJ's finding that even having
established a prima facie case of disability discrimination, the
record failed to reflect any discriminatory animus on the part of DD
toward complainant. DD stated, and the record confirms, that temporary
appointments are designed to accomplish specific activities within
a certain time period, and that DD had consistently terminated other
temporary employees when they became unable, for a variety of reasons,
to perform the duties of their temporary appointments. DD also provided
affidavit testimony that complainant was a good and hard worker and that
he would provide him with a good recommendation, which we find further
belies of finding of discriminatory animus.
Therefore, after a careful review, the Commission finds that the AJ
set forth the relevant facts and properly analyzed the case using the
appropriate regulations, policies and laws. Based on the evidence of
record, the Commission discerns no basis to disturb the AJ's finding of
no discrimination. Accordingly, it is the decision of the Commission to
AFFIRM the agency's FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2000
__________________
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
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.