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.