01970904
01-27-2000
Eugene W. Malone, Sr., Appellant, v. Dan Glickman, Secretary, Department of Agriculture, Agency.
Eugene W. Malone, Sr. v. Department of Agriculture
01970904
January 27, 2000
Eugene W. Malone, Sr., )
Appellant, )
)
v. ) Appeal No. 01970904
) Agency No. 92-0929
Dan Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
_______________________________)
DECISION
INTRODUCTION
On November 2, 1996, Eugene W. Malone, Sr. (the appellant) initiated
a timely appeal to the Equal Employment Opportunity Commission (the
Commission.<1> Appellant's complaint alleged that he was discriminated
against on the bases of his race (American-Indian), religion (Christian),
sex (male), age (53), marital status (married) and mental disability
(learning disability) in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented in this appeal is whether appellant proved, by a
preponderance of the evidence, that he was discriminated against when
he was not selected for the position of Gardener (Tractor Operator),
WG-5003-3/4, in Lockeford, California.
BACKGROUND
Appellant filed the present complaint on September 27, 1992. Following an
investigation, appellant, by letter dated June 24, 1993, was provided
a copy of the investigative file and notified of his right to request
a hearing before an EEOC Administrative Judge (AJ). According to the
agency, appellant did not request a hearing within the specified 30-day
time period. Therefore, the agency issued a final decision dated October
23, 1996, which found that appellant had not been discriminated against.
It is from this decision that appellant now appeals. On appeal,
appellant argued that there was a breach of a settlement agreement and
that the agency did not comply with the time requirements for "replying."
Since appellant did not specify or provide the settlement agreement he
was referring to or indicate what time requirements the agency violated,
we will not address these contentions in this decision. We do note,
however, that appellant, in a letter dated November 25, 1996, disputed
the agency's contention that he did not request an administrative hearing
within the 30-day time period. Appellant, stating that he did request a
hearing, appeared to indicate that he no longer has a copy of his request.
ANALYSIS AND FINDINGS
With regard to appellant's contention that he requested a hearing
within 30-days of receiving the agency's June 24, 1993 letter, we
note that the record contains two letters written to appellant by
agency officials. The first letter, dated June 3, 1993, was from D-1,
an Employee Relations Specialist. According to D-1, his office tried
repeatedly to contact appellant, by telephone, with regard to the
report of investigation. This letter was mailed to the same address
that appellant provided the Commission on appeal. The second letter,
dated November 7, 1993, was from D-2, the Acting Director, Dispute
Resolution Staff. D-2 referred to the repeated attempts by D-1 to
contact appellant, by telephone and in writing. He noted, for example,
that appellant did not respond to D-1's letter of August 19, 1993, which a
certified mail return receipt showed was received by appellant on August
25, 1993. D-2 offered appellant the opportunity to seek a resolution of
his complaint or, within 30-days, to decide whether he wanted a hearing
or a final decision. This letter was also mailed to appellant's address
of record. There is no indication that appellant responded to this
letter. In the absence of any documentation from appellant indicating
that he requested a hearing, within either of the stated time periods,
we find that the preponderance of the evidence indicates otherwise.
Next, we note that one of the bases of discrimination indicated by
appellant and investigated by the agency was marital status. The
Commission's regulations require that an agency accept a complaint or
allegation from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of their race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R.�1614.103; �1614.106(a). EEOC Regulation
29 C.F.R. �1614.107(a) provides that an agency shall dismiss an allegation
that fails to state a claim under �1614.103. We find that appellant fails
to state a claim with respect to his contention that he was discriminated
against because of his marital status. This basis is not covered under
our regulations and will not be addressed in this decision.
Disability Discrimination
To establish a prima facie case of disability discrimination, appellant
must show that: 1) he is an individual with a disability as defined
in 29 C.F.R. �1630.2(g);<2> 2) he is a "qualified" individual with
a disability as defined in 29 C.F.R. �1630.2(m); and (3) there is a
nexus between his disability and the agency's adverse employment action.
See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
The threshold question is whether appellant is an individual with a
disability within the meaning of the regulations. An individual with
a disability is one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities;
2) has a history of such impairment; or 3) is regarded as having such
an impairment. 29 C.F.R. �1630.2(g). Major life activities include
the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. �1630.2(i).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. �1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id. The only medical evidence contained in the record
is appellant's testimony that his disability is:
a learning disability. It is based on auditory reception and I have some
difficulty understanding or deciphering some things. When that happens,
it may require repetition to help me understand. The handicap [sic]
does not affect my ability to be a gardener. The Learning Disabilities
Office at Sacramento State University diagnosed the problem.
Based on the record before us, we find that appellant has presented
insufficient evidence to show that his impairment substantially limits
one or more of his major life activities. See Schultz v. United States
Postal Service, EEOC Request No. 05950724 (September 26, 1996); Sanders
v. Arneson Products Inc., 91 F.3d 1351, 1353 (9th Cir. 1996); See also
The Interpretive Guidance on Title I of The Americans With Disabilities
Act, 29 C.F.R. �1630.2(j).
Appellant also failed to show that he has a record of a disability
that substantially limited one or more of his major life activities.
A person has a record of a disability, pursuant to 29 C.F.R. �1630.2(k),
when they have a hospital or other record documenting a substantially
limiting impairment or a misclassification of such an impairment. See
School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987);
Mahoney v. Ortiz, 645 F. Supp. 22, 23-24 (S.D.N.Y. 1986). The focus
is not merely on whether the individual has a physiological disorder
or condition, but whether they have been classified (correctly or
incorrectly) as having an impairment that substantially limits one or
more of their major life activities. Thus, evidence that a person has
been diagnosed as having an impairment does not establish that the person
has a record of a disability.
Finally, we find no persuasive evidence that appellant was regarded as
having a substantially limiting condition. According to the record,
the agency, in June 1992, advertised the vacancy of Gardener (Tractor
Operator) WG-50003-3/4. Only two individuals, appellant and C-1, the
selectee, were referred to the selecting official for consideration. The
record indicates that interviews were not conducted. Appellant did
not indicate that he was disabled on his application; however, he did
submit a SF-50 showing that he had retired from Federal service in 1986,
due to a disability. According to the selecting official, A-1, appellant
"[i]ndicated that he was retired on a Civil Service disability retirement.
I did not call him or otherwise seek information about him." We also note
the testimony of A-2, who worked in the Personnel office. A-2 stated
that appellant "[s]ubmit[ted] an SF-50 showing a disability retirement,
but it did not indicate the nature of the problem."
Consequently, we find no evidence that would support a finding that
appellant, at the time he applied for the position, had, had a record
of, or was regarded as having a physical or mental impairment which
substantially limits one or more of his major life activities.
Disparate Treatment
Appellant also maintained that his nonselection was due to his race
(American-Indian), religion (Christian), sex (male) and/or age
(53). This allegation constitutes a claim of disparate treatment
employment discrimination. As such, it must be analyzed under the
tripartite analysis enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Loeb v. Textron Inc., 600 F.2d 1003 (1979).
Appellant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and appellant must then prove, by a
preponderance of the evidence, that the legitimate reasons offered by the
employer were not its true reasons, but were a pretext for discrimination.
Appellant has the ultimate burden of showing that discrimination occurred.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981).
Furthermore, as part of his ultimate burden with regard to his claim of
age discrimination, appellant must also show that age was a determinative
factor in the discriminatory action. LaMontagne v. American Convenience
Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984); Phebis Bowens
v. USPS, EEOC Appeal No. 01933155 (July 7, 1994).
The McDonnell Douglas analytical paradigm need not be adhered to in
all cases. In appropriate circumstances, when the agency has established
legitimate, nondiscriminatory reasons for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has proven by
preponderant evidence that the agency's explanations were a pretext for
actions motivated by prohibited discriminatory animus. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Therefore, in the present case, the Commission will bypass the prima
facie stage of the analysis and focus on whether the agency's explanation
for not selecting appellant was a pretext for discrimination. Burdine,
According to appellant, he was qualified for the position because
he worked as a gardener at McClellan Air Force Base and part-time
at private homes. Although he did not know C-1 and was not aware
of his qualifications, appellant maintained that his nonselection
was based, among other things, on his race, religion, sex, and age.
Finally, appellant stated that "I don't [sic] think they considered my
application. They did not consider my experience, including supervisory,
or my education in horticulture or [my] length of time as a gardener."
A-1 testified that only two candidates, appellant and C-1, were referred
to him for consideration. He reviewed their applications and made his
decision to select C-1, without conducting interviews. According to A-1,
he did not know appellant's race or religion because these matters were
not on the application. Appellant's age was listed as was his name;
therefore, A-1 was aware of appellant's age and sex. According to A-1,
both candidates were qualified; therefore, he was advised by the Personnel
office that he could chose either one of them. A-1 maintained that he
selected C-1 because he had worked with him the previous Summer, and
he had been trained on the farming operation and the specific equipment
that would be utilized. A-1 stated that, by the end of the Summer, C-1
"had become as competent in this position as anyone could be expected
to become." According to A-1, C-1 learned all aspects of the job, and was
operating with minimal supervision. A-1 felt that C-1 did a good job and
he was pleased with his performance, attendance, work habits and ethics.
A-1 indicated that he considered himself fortunate to get C-1 back,
because the work performed at the Plant Materials Center (PMC) was
not ordinary gardening. According to A-1, the PMC is an experimental
farm where conservation plants are grown and tested. These plants,
he indicated, were used almost exclusively in wild-land settings, and
were rarely used in typical landscaping. Since C-1 was already familiar
with the operation and the procedures, A-1 felt it would take less time
for him to become functional than appellant.
A-2 testified that appellant, due to his previous Federal service, was
eligible for reinstatement. Therefore, he had the right to be considered
for the position; however, he was not guaranteed that he would receive
any position for which he applied. Finally, A-2 stated that A-1 was free
to choose either candidate.
Appellant's application indicates that he worked for 16 years at McClellan
Air Force Base in the position of Gardener (Motor Vehicle Operator)
and, at the time of his application, for seven months as a Groundskeeper
of a 500 unit apartment complex. By contrast, C-1, who was 19 when he
applied for the position, listed the four months he spent at the PMC as
his only gardening experience.
Employers generally have broad discretion to set policies and carry
out personnel decisions, and should not be second-guessed by reviewing
authorities absent evidence of unlawful motivation. Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
Although appellant clearly had more years of gardening experience than
C-1, years of experience do not necessarily make an individual more
qualified to meet the needs of the organization or automatically make
a candidate more qualified than another. The record shows that both
appellant and C-1 met the basic qualifications of the positions and were
referred for consideration; however, the decisive factor in the selection
turned out to be C-1's specific experience with the PMC's operations
and procedures. We find that appellant failed to demonstrate that the
agency's legitimate, nondiscriminatory reason for not selecting him was
a pretext for race, sex, religion or age discrimination.
Furthermore, we find that other than appellant's bare assertions that his
nonselection was based on a desire to discriminate against him because of
his race, sex, religion or age, appellant offered no persuasive evidence
that these factors played any role in this matter. As previously noted,
A-1 was not aware of appellant's race or religion when he made his
selection decision. Also, C-1, like appellant, is a male. Finally,
we find no persuasive evidence that appellant's age, was a factor in
A-1's decision not to select him.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision in this matter and find that appellant failed to prove
that he was discriminated against with regard to his nonselection for
the Gardener (Tractor Operator) WG-50003-3/4 position.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S 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:
Jan 27, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
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 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.
2The 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.