01a01607
12-19-2000
Edgar W. Best, Complainant, v. Ida L. Castro Chairwoman, Equal Employment Opportunity Commission Agency.
Edgar W. Best v. Equal Employment Opportunity Commission
01A01607
12-19-00
.
Edgar W. Best,
Complainant,
v.
Ida L. Castro
Chairwoman,
Equal Employment Opportunity Commission
Agency.
Appeal No. 01A01607
Agency No. 0-9800007-DA
DECISION
INTRODUCTION
On November 27, 1999, Edgar W. Best (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated October 25, 1999, concerning his
complaint of unlawful employment discrimination in violation of � 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The Commission hereby accepts the appeal in accordance with 29 C.F.R. �
1614.405.<2>
ISSUE PRESENTED
The issue on appeal is whether the complainant proved that he had been
discriminated against on the basis of disability when the agency placed
him on Leave Restriction and considered him to be Absent Without Leave
for the period of August 8 through September 26, 1997, and when he was
denied the opportunity to participate in the Leave Transfer Program.
BACKGROUND
Complainant was employed by the agency as an Investigator, GS-12,
at the agency's Dallas District Office. Beginning on August 8, 1997
and continuing until September 26, 1997, complainant failed to report
to work, as scheduled, and he also failed to request the use of sick or
annual leave from his supervisor (MO-1). Complainant would periodically
phone in to the office and would leave messages, either with co-workers
or on his supervisor's voice mail, that he would be in later that day
or the next day. He would then fail to report. On September 10, 1997,
MO-1 sent complainant a letter notifying him that his absences were
being recorded as Absent Without Leave and that he was being placed on a
Leave Restriction. Complainant responded to the letter on September 25,
1997, requesting that he be placed on Leave Without Pay (LWOP) status
retroactive to August 8, 1997. His request for LWOP was granted, starting
as of September 28, 1997, but was denied for the period of August 8 -
September 26, 1997.
On October 2, 1997, complainant applied to participate in the agency's
Leave Transfer Program, in which he could receive leave donated from other
employees to cover the period of time he expected to be away from work
for medical reasons. The medical documentation supplied by complainant
in support of his request showed that he had seen his physician several
times between August 8 and September 26. The notes from the physician
show that his physician would release him to return to work the following
work day, after diagnosing him with either a cough or bronchitis, until
the visit on September 24, at which time the diagnosis was Post Traumatic
Stress Disorder, with the recommendation that complainant not return
to work until �after he improves.� His request to participate in the
Leave Transfer Program was denied by the District Director (Director)
on November 4, 1997, because of his placement on Leave Restriction and
because the medical documentation he had submitted had not shown that he
was suffering from a medical emergency. It was later apparently approved
by the agency's Office of Human Resources. Complainant continued in a
LWOP status until December 1, 1997, when he returned to work.
Complainant initiated EEO Counseling on October 27, 1997. He filed
a formal complaint on December 28, 1997, alleging discrimination on
the basis of disability (perceived as having a disability) when: 1)
on September 10, 1997, he was placed on Leave Restriction, and as a
consequence, he was denied the opportunity to request advanced sick
leave; 2) on September 10, 1997, he was placed on Absent Without Leave
status (AWOL) for the period of August 8 - September 26, 1997; 3) he was
intimidated and threatened with disciplinary action in the September
10, 1997 Leave Restriction letter; and 4) on November 4, 1997, he was
denied the opportunity to participate in the Leave Transfer Program.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant of his right to request an
administrative hearing. Complainant timely requested a hearing before
an independent Administrative Judge (AJ)<3>.
Following a motion by the agency for Findings and Conclusions without
a Hearing, and pursuant to 29 C.F.R. � 1614.109(e), the AJ issued
a Recommended Decision (RD) without a hearing, on October 6, 1999,
finding no discrimination. The AJ found that complainant had failed to
establish a prima facie case of disability discrimination in that he
had not shown that the agency regarded him as disabled. The AJ also
found that complainant had failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions were
a pretext for discrimination.
In its FAD, the agency adopted the Findings and Conclusions of the AJ.
Complainant timely appeals, without comment.
ANALYSIS AND FINDINGS
In order to claim the protections of the Rehabilitation Act,
complainant must first establish a prima facie case of disparate
treatment disability discrimination by showing that: (1) he is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g);<4>
(2) he is a qualified individual with a disability pursuant to 29 C.F.R. �
1630.2(m); and (3) he was subjected to an adverse personnel action under
circumstances giving rise to an inference of disability discrimination.
See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
The burden would then shift to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. � 1630.2(i).
Under 29 C.F.R. � 1630.2(g)(3), the definition of an individual with
a disability includes a person who is regarded as having a physical
or mental impairment which substantially limits one or more of such
person's major life activities. A person who is regarded as having a
such an impairment means either that the person has a physical or mental
impairment that does not substantially limit major life activities but is
treated by an employer as constituting such a limitation; has a physical
or mental impairment that substantially limits major life activities
only as a result of the attitude of an employer toward such impairment;
or does not have an impairment but is treated by an employer as having
a substantially limiting impairment. 29 C.F.R. � 1630.2(l).
In this case, the complainant failed to show that his supervisor and
second-level manager (MO-2), both of whom placed him on the Leave
Restriction, or the Director, who denied his request to participate
in the Leave Transfer program, regarded him as having a disability.
In their affidavits, MO-1, MO-2 and the Director denied that they in any
way considered complainant to have a disability. Complainant does not
provide any evidence to rebut their assertions, and a thorough review
of the record reveals no facts that would support a finding that he was
regarded by the agency as having a disability.<5>
Assuming, arguendo, that complainant had shown a prima facie case of
disability discrimination, we find that he did not rebut the agency's
legitimate, non-discriminatory reasons for placing him in an AWOL status
from August 8 through September 26, 1997, placing him on Leave Restriction
and denying his request to participate in the Leave Transfer program.
Complainant had a long history with the agency of being placed on Leave
Restriction for abusing the Leave policies. During the time period in
question, he would call the office and leave messages with co-workers
or MO-1, stating that he would return later that day or the next day,
yet he failed to report to work as he stated he would. He failed to
provide medical documentation to MO-1 regarding his absences until the
submission of his request to participate in the Leave Transfer program on
October 2, 1997. The medical documentation he did provide shows that,
until the visit to his physician on September 24, 1997, he was released
to return to work the following day. The agency granted his request for
LWOP status effective the pay period starting September 28, 1997, which
immediately followed the physician's diagnosis of Post Traumatic Stress
Disorder and the recommendation that complainant not return to work
until �after he improves.� Consequently, we find that the complainant
did not show that the agency's actions were a pretext for discrimination.
CONCLUSION
Accordingly, the agency's adoption of the AJ's RD was proper and is
AFFIRMED.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__12-19-00________________
Date
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
______________________________
1On 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.
2 In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution of
discrimination complaints. For purposes of this decision, the term
�Commission� or �EEOC� is used when referring to the adjudicatory
authority and the term �agency� is used when referring to the
respondent party in this action. The Chairwoman has recused herself
from participation in this decision.
3 Where a hearing is requested, a case ordinarily is assigned to an EEOC
AJ. However, when the EEOC is the respondent agency, in accordance with
Commission policy, the case is assigned to an AJ not employed by the
EEOC.
4 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. See 29 U.S.C. � 791(g).
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.
5 A review of the record also reveals no medical evidence as to which
major life activities may have been substantially limited by those
medical conditions diagnosed by complainant's physician, and we find
nothing in the record to support a determination that complainant was
actually disabled or had a record of being disabled.