01972092
01-27-2000
David E. Gadson, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
David E. Gadson v. Department of the Treasury
01972092
January 27, 2000
David E. Gadson, )
Complainant, )
) Appeal No. 01972092
v. ) Agency No. 96-2016
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
Complainant, who at the relevant time was employed as a Border Patrol
Agent by the Department of Justice, Immigration and Naturalization
Service, alleges that because of his sex (male) and his disability (back
and knee injuries), he was denied the medical clearance required to
participate in the Border Patrol Academy at the Treasury Department's
Federal Law Enforcement Training Center (FLETC). Believing he was
discriminated against, complainant filed two EEO complaints: one with
the Department of Justice; and one with the Department of Treasury.<2>
The Department of Treasury accepted complainant's above referenced claim
for processing. When the formal investigation was complete, complainant
initially requested a hearing before an EEOC Administrative Judge but
subsequently withdrew his request, and the Department of Treasury issued
a FAD. It is from this decision complainant now appeals. We note that
complainant is required to file his formal EEO complaint against the
agency which has taken the discriminatory employment action by which he
is allegedly harmed. 29 C.F.R. � 1614.106(a). Accordingly, the instant
complaint was properly filed with the Department of Treasury (hereinafter
the "agency"). The Commission accepts the appeal in accordance with
EEOC Order No. 960.001. For the following reasons, we affirm the FAD.<3>
The FAD concluded that complainant failed to make a prima facie case of
sex discrimination because he did not establish that he was similarly
situated to the comparative female applicant who was permitted to
attend the training. In reaching this conclusion, the FAD noted that
the comparative female, who was initially denied medical certification,
unlike complainant, opted to be examined by a local FLETC recommended
orthopedic specialist who found her physically capable to participate in
the training. The FLETC certifying physician was willing to accept the
local orthopedic specialist's opinion because the specialist performed a
thorough "work up" and was aware of the "Practical Exercise Performance
Requirements (PEPR's) and Medical Screening of Students at FLETC."
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), the Commission agrees with the agency that
complainant failed to establish a prima facie case of sex discrimination
because the evidence does not establish that complainant was treated
less favorably than any similarly situated female applicant under
similar conditions. In reaching this conclusion, we find that there is
no evidence that of the three female applicants whose medical records
were contained in the record, none had a risk of re-injury as significant
as complainant's. Moreover, the record is devoid of evidence to support
a finding that complainant's sex played any role whatsoever in the FLETC
physician's decision to deny him medical certification.<4>
The FAD also found that complainant failed to establish a prima facie case
of disability discrimination because he did not establish: (1) that his
impairment substantially limited any one of his major life activities;
or (2), in the alternative, that he was a "qualified individual with a
disability" because he could not safely perform the exercises required
for the completion of the program.
Based on the standards set forth in McDonnell Douglas, supra, and
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
the Commission also agrees with the agency that complainant failed
to establish a prima facie case of disability discrimination because
complainant did not establish that he has either a physical or mental
impairment which substantially limits any one of his major life
activities; or that he has a record of such impairment; or that he was
regarded as such by the agency. EEOC Regulation 29 C.F.R. � 1630.2(i)
defines "major life activities" as including the functions of caring
for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working.<5> The only impairment we can
ascertain from the record is that complainant could not meet the physical
requirements of the FLETC training without a serious risk of re-injury.
This impairment limited his ability to work as a Border Patrol Agent.
However, an individual is not substantially limited in the ability
to work simply because he cannot perform one particular job for one
particular employer. See Scalese v. Department of the Air Force,
EEOC Petition No. 03960050 (July 10, 1996) (citing Forrisi v. Bowen,
794 F.2d 931, 934 (4th Cir. 1986). Accordingly, his ability to work is
not substantially limited, and he is not disabled within the meaning of
the Rehabilitation Act.<6>
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we 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:
January 27, 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 Department of Justice initially dismissed complainant's complaint
on the grounds that the complaint failed to state a claim because it
was not filed with the agency that allegedly discriminated against
complainant. 29 C.F.R. �1614.106(a); see also Colantuoni v. OPM, EEOC
Request No. 05950136 (September 14, 1995). However, in Gadson v. DOJ,
EEOC Appeal No. 10966311 (November 12, 1997), the Commission found that
the Department of Justice misdefined complainant's claims. Accordingly,
the Commission remanded the complaint to the Department of Justice to
process complainant's claims that the agency failed to promote him and
denied him benefits.
3 We note that in its FAD, the agency found that if complainant were to
prevail, it is possible that both agencies would be required to provide
elements of the requested relief. The FAD specifically noted that if
the agency was required to admit complainant to the training course
at issue, the agency could not require the Department of Justice to
enroll complainant. As such, we find that both agencies should have been
named as proper respondents, and the instant complaint should have been
jointly processed. Buchhagen v. Department of Health and Human Services,
EEOC Request No. 05940948 (June 3, 1996). However, given that we affirm
the agency's finding that complainant's claims are without merit, we
find that the processing error is harmless.
4 We note that one of the female applicants who was permitted to begin
the FLETC training was injured during its course and was not permitted
to continue the training.
5 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.
6 We note that complainant was reassigned by the Department of Justice
to the position of Mechanic.