Brian M. McWilliams, Complainant,v.James Lee Witt, Director, Federal Emergency Management Agency, Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01974963 (E.E.O.C. Feb. 16, 2000)

01974963

02-16-2000

Brian M. McWilliams, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.


Brian M. McWilliams v. Federal Emergency Management Agency

01974963

February 16, 2000

Brian M. McWilliams, )

Complainant, )

) Appeal No. 01974963

v. ) Agency No. 95-0008

) Hearing No. 310-96-5499X

James Lee Witt, )

Director, )

Federal Emergency Management Agency, )

Agency. )

)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the bases of disability (back

injury) and reprisal (prior EEO activity), 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 he was discriminated against due to his disability when

his supervisor: (1) refused to consider his request for a grade increase;

(2) repeatedly provided false and inaccurate information regarding how

and what a Disaster Assistance Employee (DAE) needed for advancement

consideration, and (3) provided false information and took action to

hinder his transfer to another region. Also, complainant claims that

he was discriminated against based on reprisal when he was terminated.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

Following an investigation, complainant requested a hearing before an

Equal Employment Opportunity Commission (EEOC) Administrative Judge

(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),

finding no discrimination. The agency's FAD adopted the AJ's findings of

no discrimination. It is from this decision that complainant now appeals.

The record reveals that during the relevant time, complainant was employed

by the agency as a Disaster Assistance Employee Reservist (DAE), grade

level C-1, Region VI.

First, the AJ concluded that complainant is a qualified individual

with a disability as defined by � 501 of the Rehabilitation Act.<2>

Complainant has a permanent cervical injury which substantially limits a

major life activity, and he was able to perform the duties of his position

without accommodation. Furthermore, the AJ found that complainant never

requested any accommodation, and despite his disability, his supervisor

continued to deploy him to disasters. In fact, complainant testified that

at one of his assignments he worked over ten hours a day, and the record

revealed that he worked more hours than other employees in his group.

Next, the AJ concluded that complainant failed to establish a prima

facie case of disability discrimination with respect to his: (1)

request for a grade increase; (2) supervisor providing false information

regarding consideration for advancement, and (3) supervisor providing

false information in order to hinder his request for a transfer to

Region VII. Specifically, complainant failed to provide any evidence

that: (1) other DAE Reservist Public Information employees, who worked

under his supervisor, were promoted to the grade D level, and (2) his

supervisor gave him false information regarding a grade increase. Also,

complainant failed to provide any evidence that non-disabled, similarly

situated individuals were treated differently under similar circumstances,

when requesting information about transferring to another region.

Regarding responsible agency officials (RMOs ) taking action to hinder

his transfer to Region VII, the AJ found that complainant established a

prima facie case of discrimination. Region VI RMOs provided Region VII

information concerning complainant's credit card delinquencies, which

influenced Region VII's decision not to request complainant's transfer.

With respect to reprisal, the AJ determined that complainant established

a prima facie case of discrimination. Shortly after complainant filed

an EEO complaint, complainant's appointment was not renewed.

The AJ concluded that the agency articulated legitimate non-discriminatory

reasons for its actions. First, complainant's assignments were consistent

with the grade C level, and he had not performed duties such as setting

up and planning a Public Information Office, which are the duties required

for the grade D level. Concerning whether complainant was provided false

information, and action was taken to hinder his transfer, the AJ found

that complainant was informed that in order to be transferred, Region

VII had to request his transfer. Also, several RMOs contacted Region

VII to determine whether it was interested in complainant's transfer;

however Region VII was not interested. Furthermore, the AJ found that

complainant's request to transfer was not hindered by Region VI informing

Region VII of complainant's credit card delinquencies, because complainant

wanted to transfer to Region VII, and credit card delinquency was a

major agency concern. Additionally, the AJ determined that complainant's

explanations for his credit card delinquencies were not credible.

Regarding the non-renewal of complainant's appointment, the AJ determined

that the decision to terminate complainant was based on complainant

not being dependable at deployments, and his credit card delinquency,

rather than his disability and his prior EEO activity.

The AJ determined that complainant failed to establish that the agency's

articulated reason was a pretext to mask unlawful discrimination.

Concerning the above stated issues, complainant did not provide any

evidence that he was discriminated against based on disability and

reprisal, respectively.

After a careful review of the entire record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, the Commission finds that the AJ's RD

summarized the relevant facts and referenced the appropriate regulations,

policies, and laws. Pursuant to 64 Fed. Reg 37,644, 37,659 (1999)

(to be codified at 29 C.F.R.� 1614.405(a)), all post-hearing factual

findings by an Administrative Judge 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). Furthermore,

we find that as a DAE, complainant could be terminated at any time without

cause or justification. Also, that complainant could be terminated for

failure to maintain good standing with the agency's government issued

credit card. We note that complainant failed to present evidence that any

of the agency's actions were in retaliation for complainant's prior EEO

activity or were motivated by discriminatory animus toward complainant's

disability. Therefore, the Commission discerns no basis to disturb the

AJ's findings of no discrimination. Accordingly, it is the decision of

the Equal Employment Opportunity Commission to AFFIRM the 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:

February 16, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 On 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.

2 The 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.