01981016
05-02-2000
Eugene L. Webster, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Eugene L. Webster v. Department of the Interior
01981016
May 2, 2000
Eugene L. Webster, )
Complainant, )
) Appeal No. 01981016
v. ) Agency No. NP-95-110
) Hearing No. 370-96-X2740
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
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 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 alleges he was
discriminated against on the basis of physical disability (organic
mental syndrome and spastic bladder caused by viral meningitis) and in
retaliation for prior protected activity when he received a performance
appraisal rating of minimally successful for the period ending June 30,
1994 and for his mid-year review on June 12, 1995. For the following
reasons, the Commission affirms the agency's final decision.
The record reveals that complainant, a Motor Vehicle Operator at the
Redwood National Forest in Crescent City, California, filed a formal EEO
complaint on August 1, 1995, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination which the agency
adopted as its final decision. On appeal, complainant restates arguments
previously made at the hearing. The agency did not file a response.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
We do not reach the issue of whether or not the AJ correctly held
that complainant's disabilities bring him within the purview of the
Rehabilitation Act. Based on our review of the record, we find that
even assuming arguendo complainant is a qualified individual with a
disability within the meaning of the Rehabilitation Act, we discern no
basis to disturb the AJ's conclusion that because there was no nexus
between the unfavorable appraisal ratings and complainant's disabilities
or his prior protected activity, complainant failed to establish that
the ratings were motivated by discriminatory or retaliatory animus.
Furthermore, we concur with the AJ's finding that during the time period
at issue, management did not receive anything that could be interpreted
as a request for a reasonable accommodation and that there was no reason
for management to suspect that complainant needed anything beyond which
the agency had already provided.<3> See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act (March 1, 1999). Therefore, after a careful review of
the record, we AFFIRM the agency's final decision.
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 (S0400)
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:
May 2, 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
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 The AJ noted that the agency had been accommodating complainant's memory
loss, apparently to his satisfaction, for over a decade by reducing oral
instructions to writing.