Charles C. Cox, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
01981386 (E.E.O.C. Dec. 21, 2000)

01981386

12-21-2000

Charles C. Cox, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Charles C. Cox v. Department of the Navy

01981386

December 21, 2000

.

Charles C. Cox,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01981386

Agency No. 94-00197-054

Hearing No. 240-97-5098X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 29

C.F.R. � 1614.405.<2> Complainant alleges he was discriminated against

on the bases of age (DOB: 7/31/46), disability (pulmonary disorder,

sleep apnea, depression, and learning disorder) and in reprisal for prior

protected activity<3> when he was harassed by his supervisor concerning

his work performance and was required to provide personal information

in the form of medical documentation without being fully advised of his

legal rights. For the following reasons, the Commission affirms the

agency's final decision.

The record reveals that complainant, an Electronics Engineer at an agency

facility in Louisville, Texas, filed a formal EEO complaint on August 12,

1994, alleging that the agency had discriminated against him as referenced

above. At the conclusion of the investigation, complainant received a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge. The Administrative Judge found that in response to

the agency's motion for summary judgment, complainant failed to proffer

evidence sufficient to create a genuine issue of material fact and issued

a decision without a hearing, adopting as her own the "statement of fact"

and "argument" set forth in the agency's motion for summary judgment.

The agency's final decision adopted the Administrative Judge's finding of

no discrimination. On appeal, complainant states that the Administrative

Judge failed to fully consider the numerous other EEO complaints he filed

against the agency and that the agency ultimately terminated his employ.

The Commission applies a de novo standard of review to factual findings

by an Administrative Judge when no hearing was held and to all conclusions

of law whether or not a hearing was held.

29 C.F.R. � 1614.405(a). Assuming without determining that complainant

is a qualified individual with a disability within the meaning of

the Rehabilitation Act, after a careful review of the record, the

Commission finds that the agency did not violate the Rehabilitation Act

when management asked complainant to provide medical documentation in

support of his reasonable accommodation request to report to work any

time between 6:00 a.m. and 10:00 a.m. An employer may ask an employee

for documentation when, as in this case, the disability and or need

for accommodation is not obvious. See EEOC Enforcement Guidance on

Reasonable Accommodation and Undue Hardship Under the Americans With

Disabilities Act, Question 6 (March 1, 1999) (stating that an employer

is entitled to know that the individual has a covered disability for

which he needs a reasonable accommodation).

Furthermore, we find that complainant failed to establish a prima facie

case of harassment on any of his alleged bases since his supervisor's

inquiry into the status of an assigned work project was not sufficiently

severe or pervasive to render the working environment hostile. See Harris

v. Forklift Systems, Inc., 510 U.S. 17 (1993); EEOC Notice No. 915.002

(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems,

Inc. at 3, 6.

After a careful review of the record including arguments and evidence not

specifically addressed in this decision, we discern no basis to disturb

the AJ's finding of no discrimination, and we affirm the agency's final

decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)

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

December 21, 2000

__________________

Date

1 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.

2 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3 The Commission finds that complainant's participation in prior protected

activity was raised under the above referenced statutes.