0120064588
12-15-2008
David O. Ferchau, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
David O. Ferchau,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200645881
Agency No. 05-65540-01400
DECISION
On August 7, 2006, complainant filed an appeal from the agency's June 29,
2006 final decision concerning his equal employment opportunity (EEO)
complaint claiming unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted for the Commission's de novo review pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
During the period at issue, complainant worked as a Alteration
Installation Team Submarine Program Manager, Mechanical Engineer,
GS-830-13, at the agency's Naval Surface Warfare Center, Carderock
Division facility in Philadelphia, Pennsylvania. Due to an injury
received while on official travel in December 2004, which aggravated an
already existing condition, complainant filed a claim with the Office
of Workers' Compensation Programs (OWCP). Complainant was placed on a
half-day light duty schedule in order to accommodate his recuperation
period and need for physical therapy. As his condition improved,
complainant was progressively adding more hours to his work day,
with the eventual return to a full time schedule envisioned. On May
20, 2005, complainant submitted a request to travel to Norfolk and
Virginia Beach, Virginia from May 25 through May 27, 2005, in order to
attend work-related meetings. His first and second level supervisors
required that he provide medical information or documentation which
specifically showed that he could take the trip, on the advice of the
Injury Compensation Program Administrator. On May 24, 2005, complainant
submitted a letter from his doctor which stated that he was able to
travel and to attend meetings for the duration of an eight-hour day.
Complainant's travel was subsequently approved, and he made the trip.
On July 28, 2005, complainant filed the instant EEO complaint. Therein,
complainant claimed that he was discriminated against on the bases
of disability (degenerative disc disease of the lumbar spine) and in
reprisal for prior protected activity when, on May 23-25, 2005, he was
required to provide additional information and medical documentation
prior to his travel for work on May 26, 2005.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant submitted a
statement of his belief that the investigation was inadequate, specifying
in what areas he felt the investigation was lacking. It was his belief
that a supplemental investigation would be conducted and that he would be
given the opportunity to review a revised investigatory report. Instead,
the agency made his objections a part of the record. As complainant had
not requested a hearing before an EEOC AJ within the time frame provided
in 29 C.F.R. � 1614.108(f), the agency issued a final decision on the
existing record pursuant to 29 C.F.R. � 1614.110(b).3
In its decision, the agency found no discrimination. The agency found
that complainant failed to establish that he was an individual with a
disability, as defined under the Rehabilitation Act, and that therefore he
had not shown a prima facie case of disability discrimination. It assumed
he had established a prima facie case of reprisal discrimination.
It noted a legitimate, nondiscriminatory reason for its actions, namely
that complainant's supervisors believed that at the time of the travel
request, complainant was only approved to work six hours a day, and
that he would need medical approval to work an eight hour day before
he could travel for the agency. The agency concluded that complainant
had not shown management's reasons to be pretext for discrimination,
and issued its decision finding no discrimination.
Following his receipt of the agency's final decision, complainant timely
filed the instant appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
The prima facie inquiry may be dispensed with in this case, however,
because the agency has articulated legitimate and nondiscriminatory
reasons for its conduct.4 See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
The agency articulated legitimate and nondiscriminatory reasons for its
action of requiring the complainant to submit medical documentation that
specifically allowed him to go on travel and work an eight-hour day.
Complainant's supervisors, in consultation with the Injury Compensation
Program Administrator, believed that it was necessary that complainant's
physician clear him to travel, especially in light of his current
restrictions and the fact that his injury was received while on travel in
December 2004. Complainant has not shown that the agency's reasons are
pretext for discrimination. Complainant argues that the requirement
for additional documentation was unnecessary, given the documentation
already on file with the agency. However, he fails to articulate in
what way it was discriminatory. His argument centers on the "undue
stress and frustration" the request caused. However, that effect of
the agency's actions is not proof that the actions were discriminatory.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we affirm the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (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
12-15-08
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 Although complainant consistently objected to the agency's wording
of his claim of discrimination and provided his preferred statement of
his claim, we find that there is no material difference in the substance
of what the EEO Investigator would need to gather information on in the
processing of his complaint. We have considered complainant's preferred
wording in our consideration of his complaint, and find that under either
wording, our analysis remains the same.
3 We have reviewed complainant's "List of Deficiencies" and find that
the agency acted appropriately in making it a part of the record, and in
not conducting a supplemental investigation. We find that the record as
it stands, including complainant's statements, is adequately developed
on which to make a decision.
4 Therefore, we make no finding as to whether or not complainant is an
"individual with a disability" as defined by the Rehabilitation Act.
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0120064588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064588