Carolyn S. Meeks, Appellant,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01970002 (E.E.O.C. Jan. 29, 1999)

01970002

01-29-1999

Carolyn S. Meeks, Appellant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.


Carolyn S. Meeks v. Tennessee Valley Authority

01970002

January 29, 1999

Carolyn S. Meeks, )

Appellant, )

)

)

v. ) Appeal No. 01970002

) Agency No. 0511-94064

) Hearing No. 250-94-8268X

Craven H. Crowell, Jr., )

Chairman, )

Tennessee Valley Authority, )

Agency. )

)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from the final decision of the agency concerning

her allegation that the agency discriminated against her in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq. and Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. Section 791 et seq. This appeal is accepted by the Commission

in accordance with the provisions of EEOC Order No. 960.001.

ISSUES PRESENTED

Whether appellant has proved, by a preponderance of the evidence, that

the agency discriminated against her on the bases of physical disability

(kidney disorder-idiopathic stone disease and back injury-bulging disk)

when, on or about March 15, 1994, she was forced to violate her medical

restrictions; and reprisal (prior EEO activity) when, on March 4, 1994,

she received an unfavorable performance evaluation.

BACKGROUND

In a formal complaint filed on May 11, 1994, appellant alleged that

the agency discriminated against her as referenced above. The agency

accepted appellant's complaint and conducted an investigation. At the

conclusion of the investigation the agency notified appellant of her

right to request a hearing before an EEOC Administrative Judge (AJ) or

a final decision by the agency without a hearing. Appellant requested

a hearing. On November 29, 1995, a hearing was held before an EEOC AJ.

Thereafter, on July 22, 1996, the AJ issued his Findings of Facts and

Conclusions of Law finding no discrimination. On September 3, 1996, the

agency issued a final agency decision (FAD) adopting the AJ's finding of

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

At the time of appellant's complaint, she was employed by the agency as

a Custodian, SF-1, at the Tennessee Valley Authority's Sequoyah Nuclear

Plant. The record reveals that appellant filed a prior EEO complaint in

1992, which was resolved through a settlement agreement in 1993. In the

present complaint, appellant alleged that the Responsible Official (RO)

from her 1992 complaint issued her an unfavorable quarterly service review

by rating her a "Meets Some"in the area of teamwork. Appellant further

alleged that she was required by management to do work which violated her

work restrictions in relation to lifting, bending, and climbing stairs,

which were placed on her as a result of both a 1989 and 1994 back injury.

With respect to appellant's disability claim, the AJ found that

appellant failed to present any evidence regarding her alleged disability.

He also found that appellant failed to identify how her alleged disabling

condition substantially limited any major life activity. Furthermore,

the AJ found that appellant's claim that she was forced to violate her

medical restrictions was without credible merit in that appellant was at

all times in control of whether she violated any restrictions. The AJ

also found that she never identified herself as disabled to management,

nor did management perceive appellant as a person with a disability.

Similarly, in regards to appellant reprisal claim, the AJ found no

connection, or nexus, between appellant's prior EEO complaint and her

unfavorable performance evaluation.

ANALYSIS AND FINDINGS

Disability Discrimination

Appellant can establish a prima facie case of disability discrimination

by establishing that: (1) she is an individual with a disability as

defined by EEOC Regulation 29 C.F.R. �1614.203(a); (2) she is a qualified

individual with a disability as defined by 29 C.F.R. �1614.203(a)(6); and

(3) she was subjected to an adverse personnel action under circumstances

giving rise to an inference of disability discrimination. See Prewitt

v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).

EEOC Regulation 29 C.F.R. �1614.203(a) states that an individual

with a disability is one who has a physical or mental impairment

which substantially limits one or more of such individual's major life

activities, has a record of such an impairment, or is regarded as having

such an impairment. Major life activities include caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.

We find, as did the AJ, that appellant has not established that she is

a person with a disability as defined by the regulations. The record

is devoid of any medical evidence in support of her claim of physical

disability. Further, there is no evidence that the agency considered

appellant as having a physical impairment which substantially limited

a major life activity.

Reprisal Discrimination

Appellant's allegation of reprisal discrimination constitutes a

claim of disparate treatment which is properly analyzed under the

three-tiered order and allocation of proof as set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester

Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),

aff'd., 545 F.2d 222 (1st Cir. 1976).

The McDonnell Douglas analytical paradigm need not be adhered to in all

cases. In appropriate circumstances, when the agency has established

legitimate, nondiscriminatory reasons for its conduct, the trier of fact

may dispense with the prima facie inquiry and proceed to the ultimate

stage of the analysis, i.e., whether the complainant has proven by

preponderant evidence that the agency's explanations were a pretext for

discrimination. See United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department of

Transportation, EEOC Request No. 05900159 (June 28, 1990). Since the

agency has articulated a legitimate, nondiscriminatory reason for its

action, the Commission will consider whether the agency's explanations

for its actions were a pretext for discrimination. The agency stated

that appellant needed to be more team oriented and needed to get along

with others. Appellant has failed to show that the agency's reason for

its action was pretext for discrimination.

CONCLUSION

Accordingly, it is the decision of the EEOC to AFFIRM the agency's final

decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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. �l6l4.604(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 this 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 this 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 this 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. Both the request and the civil action must be Filing a request for

an attorney does not extend your time in which to file a civil action.

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

Jan 29, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations