Edgar W. Best, Complainant,v.Ida L. Castro Chairwoman, Equal Employment Opportunity Commission Agency.

Equal Employment Opportunity CommissionDec 19, 2000
01a01607 (E.E.O.C. Dec. 19, 2000)

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.