Cary D. Cunningham, Complainant,v.Robert M. Gates, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionDec 10, 2009
0520090689 (E.E.O.C. Dec. 10, 2009)

0520090689

12-10-2009

Cary D. Cunningham, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.


Cary D. Cunningham,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense

(Defense Finance & Accounting Service),

Agency.

Request No. 0520090689

Appeal No. 0120081093

Hearing No. 430-2007-00112X

Agency No. DFAS-IN-CP-06-044

DENIAL

Complainant timely requested reconsideration of the decision in Cary

D. Cunningham v. Department of Defense, EEOC Appeal No. 0120081093

(August 27, 2009). EEOC Regulations provide that the Commission may,

in its discretion, grant a request to reconsider any previous Commission

decision where the requesting party demonstrates 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. See 29 C.F.R. �

1614.405(b).

In the appellate decision, complainant alleged that he was discriminated

against on the bases of race (African American), sex (male),

disability (Schizophrenia), and age (57) when on March 28, 2006,

he was removed from federal service. An EEOC Administrative Judge

(AJ) issued a decision without a hearing finding no discrimination.

The AJ found that complainant failed to establish that the responsible

agency officials were aware of his disability or that the agency's

legitimate, nondiscriminatory reasons for his removal were a pretext

for unlawful discrimination. The agency fully implemented the AJ's

finding of no discrimination. The Commission agreed with the finding of

no discrimination. The Commission found that, even assuming arguendo

that complainant established a prima facie case of discrimination, the

agency had articulated a legitimate nondiscriminatory reason for its

action; namely, that complainant was terminated during his probationary

period because "he was unable to perform his normal work duties."

Coworkers reported that complainant was observed "slurring his speech and

stumbling, his eyes were watery and reddish, his hands were shaking, and

when he stepped close I could smell alcohol." It was also believed that

complainant had appeared inebriated at work in the past. The Commission

found that complainant failed to establish that the articulated reasons

were pretext for discrimination.

In his request for reconsideration, complainant contends that his

mumbling/slurred speech and unsteadiness on his feet were long-standing

side effects of his medication for schizophrenia. Complainant contends

that agency officials were told by his supervisor that complainant's

behavior could have been due to a medical condition or mental health

problem. Complainant contends that the agency was under a duty to

inquire as to whether a disability was at issue. He maintains he was

treated differently because of his disability. Complainant argues that

whether complainant was intoxicated or was suffering from a disability

creates a genuine issue of material fact.

After reconsidering the previous decision and the entire record,

the Commission finds that the request fails to meet the criteria of

29 C.F.R. � 1614.405(b), and it is the decision of the Commission to

deny the request. The Commission finds that complainant failed to show

that the appellate decision involved a clearly erroneous interpretation

of material fact or law, or that the appellate decision will have a

substantial impact on the policies, practices, or operations of the

agency. The Commission finds that no genuine issues of material fact

exists because the record shows that the managers involved with his

removal were not aware of complainant's medical condition or that he was

on medication. The record shows that the manager that sent complainant

home believed that complainant was intoxicated. Further, the Commission

finds that the vague statements of the supervisor that complainant's

condition might be attributable to "something else" besides inebriation

were insufficient to impute knowledge of complainant's existing medical

condition to the agency or trigger a duty to inquire. Additionally,

we note that the supervisor that made the statement that complainant's

behavior could have been due to a medical condition or mental health

problem was not at work to assess the situation on March 17, 2006,

and she was not involved in the processing of complainant's removal.

Accordingly, we find the decision in EEOC Appeal No. 0120081093 remains

the Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 10, 2009

Date

2

0520090689

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0520090689