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.