01975963
04-26-2000
David G. Sabo, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
David G. Sabo v. Department of Transportation
01975963
April 26, 2000
David G. Sabo, )
Complainant, )
) Appeal No. 01975963
v. ) Agency No. 1951023
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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.; 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, as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<2> Complainant alleged that he
was discriminated against on the bases of national origin (Hungarian),
age (45), physical disability (difficulty walking and standing for long
periods of time), and mental disability (major depression), when the
agency did not select him for the position of Linehandler on February
22, 1994.<3>
The record reveals that prior to the non-selection in 1994, complainant
had been employed with the agency's Saint Lawrence Seaway Development
Corporation (facility) as a Temporary Linehandler from May 1992 to
June 1992. The agency terminated complainant prior to the expiration
of his appointment due to his falsifying information on his employment
application. In early 1994, complainant applied for one of three
Linehandler vacancies at the facility. On February 22, 1994, the agency
selected three other individuals for the positions.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on September 19,
1994. At the conclusion of the investigation, complainant was informed
of his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant established prima
facie cases of national origin and age discrimination regarding the
non-selection because he was qualified for the positions but was not
selected in favor of the selectees, individuals outside his protected
classes. The FAD then concluded that complainant failed to establish
a prima facie case of disability discrimination because he presented no
evidence to substantiate that he has an impairment which substantially
limits or restricts a major life activity, has a record of such an
impairment, or is regarded as having an impairment. Additionally, the
FAD concluded that the agency articulated a legitimate, nondiscriminatory
reason for its action, namely, that the selecting official, who also
previous served as complainant's supervisor, stated that he did not
select complainant for the position because of his past poor performance
at the facility. Finally, the FAD found that complainant failed to
provide evidence demonstrating that the agency's articulated reason was
a pretext for unlawful age, disability or national origin discrimination.
On appeal, complainant asserts that the selecting official was fully
aware of his disability due to his noticeable limp while walking and that
he was the oldest applicant to apply for the positions. In response,
the agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue), the Commission agrees with the agency that complainant
failed to present sufficient credible evidence demonstrating that he
was the victim of unlawful discrimination. We find that complainant
did not meet his burden of demonstrating that more likely than not, the
agency's articulated reason (complainant's past poor performance) was but
mere pretext for discrimination. Nowhere in the record does complainant
address the agency's contentions regarding his past performance at the
agency. Further, we find that the evidence does not support a finding
that the agency's selection in this case was motivated by discriminatory
animus toward complainant's age, disability or national origin.
We also agree with the FAD finding that complainant failed to present
credible evidence showing that he is an individual with a disability,
has a record of an impairment, or is regarded as having an impairment.
The selecting official stated that while he was aware that complainant's
application indicated a veteran disability rating of 30 percent, he did
not discuss the particulars of the impairment rating with complainant,
but did as with all candidates, ask if complainant could perform the
physical requirements of the position. He stated that complainant did not
indicate that he would have a problem with the physical requirements.
Although complainant relies on the fact that the agency was aware
of his veteran's disability status, the Commission has held veteran's
disability status alone does not necessarily establish a disability under
the Rehabilitation Act. See Wood v. United States Postal Service, EEOC
Request No. 05950624 (October 17, 1997). In this case, complainant has
not shown that prior to the non-selection, he provided the agency with
any documentation of his alleged disability. We further note that during
his prior employment with the agency, complainant refused to identify
any impairment on the agency's "Self-Identification of Handicap" form.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' 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:
April 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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. 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.
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 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.
3 On appeal, complainant adds the basis of reprisal.
4 While complainant added the basis of reprisal on appeal, we find that
he presented no evidence to support a finding of reprisal discrimination.
See, e.g., Van Druff v. Department of Defense, 01962398 (February 1,
1999).