01970511
08-31-2000
Gary B. Brill, Complainant, Richard J. Danzig, Secretary, Department of the Navy, Agency
Gary B. Brill v. Department of the Navy
01970511
August 31, 2000
Gary B. Brill, )
Complainant, )
) Appeal No. 01970511
) Agency No. 95-65885-011
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning
his complaint of unlawful employment discrimination in violation
of the Rehabilitation Act of 1973,<1> as amended, 29 U.S.C. �791 et
seq.<2> Accordingly, the appeal is accepted in accordance with 64
Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly found no discrimination
when complainant was forced to work in a hostile, abusive work environment
and complainant's manager refused to move him to a work area away from
a hostile co-worker.<3>
BACKGROUND
Complainant, a production controller in the Alemeda Naval Aviation Depot,
filed a formal complaint alleging discrimination on the basis of mental
disability (alcoholism, depression, and anxiety) when the Division
Director (DD) failed to move him to a work area away from an abusive
co-worker (the mechanic). Complainant filed the complaint after he was
involved in an argument with the mechanic which resulted in disciplinary
action taken against him.<4>
Complainant stated he asked his supervisor and the Division Director
(DD) on several occasions prior to the argument to move him to a work
area away from the mechanic. Complainant said the DD refused.
The DD denied discriminating against complainant. He stated that
he had no recollection of either complainant informing him of his
mental disability<5> or of complainant's requests to be moved. The DD
stated that his decision to discipline complainant was in keeping with
a written Command Policy issued to all employees regarding threats and
acts of violence. The policy provided that such behavior could result
in removal from federal service on the first offense. The DD stated
that he issued similar letters disciplining six other employees during
the past two years. Two of those had no disability. There is no record
of whether the other four had disabilities.
In its final decision the agency found that the DD's disciplinary
actions were legitimate and nondiscriminatory based on the results of
the Security Office investigation and the Command Policy. The agency
found that complainant failed to prove that the reasons stated were a
pretext for discrimination. The agency further found that complainant
failed to show that he was an individual with a disability as defined
by the regulations, noting that although complainant indicated on his
personnel records that he had a mental disability, there was no evidence
that he had a history of a substantial limitation, or that the management
officials involved were aware of his alleged disability.
The agency found that, assuming arguendo, that complainant was a qualified
individual with a disability, he failed to establish a prima facie case
of discrimination based on disability because the record showed that
similarly situated employees who did not have such a disability also
received proposed removals from the same manager.
On appeal, complainant argues that the agency misstated his complaint.
He states he alleged discrimination based on the DD's refusal to move
him from a hostile and abusive work environment. Complainant also argues
that the agency had constructive notice of his mental impairment because
he is self-identified as having a mental or emotional illness or history
of treatment for mental or emotional problems on the agency's Equal
Employment Opportunity and Status Summary Report.
ANALYSIS AND FINDINGS
To bring a claim of disability discrimination, complainant must
first establish that he has a disability within the meaning of
the Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999);
Albertsons, Inc., v. Kirkingburg, 527 U.S. 555 (1999); Cook v. United
States Postal Service, EEOC Request No. 05960015 (June 21, 1996)
(To merit the protection of the Rehabilitation Act, it is not enough
to have a particular medical condition that carries the potential for
substantial limitations).
EEOC Regulation 29 C.F.R. �1630.2(g) defines disability, with respect
to an individual, as a physical or mental impairment that substantially
limits one or more of the major life activities of the individual;
a record of such an impairment; or being regarded as having such
an impairment. The Commission finds as a threshold issue that
complainant fails to establish that he is a person with a disability
under 29 C.F.R. 1630.2(g). Complainant identified himself as having a
mental or emotional disability in the agency EEO Report; however, the
record contains no medical documentation, affidavits or other evidence
to establish complainant's claim. Further, there is no evidence to
indicate that either of complainant's supervisors or the DD were aware
that complainant claimed to have a mental disability or that they regarded
complainant as disabled.
Because complainant has not claimed discrimination on any other bases
protected by laws enforced by the Commission, and because complainant
fails to establish that he is a disabled individual under the regulation
cited above, the Commission finds that the decision of the agency finding
no discrimination was proper and is AFFIRMED.
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:
August 31, 2000 _______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 agency erroneously describes the discriminatory event as when
complainant received the Interim Notice of Proposed Removal.
4 Complainant received an Advance Notice of Proposed Removal followed by
an Interim Notice of Proposed Removal which held the removal in abeyance
for a probationary period of twelve months. Following the argument the
mechanic complained to the DD that complainant shoved him as he walked
away. Complainant denied he touched the mechanic. The DD ordered the
Security Office to investigate. Although four of five co-workers said
they witnessed the incident and saw no pushing, shoving or touching, (the
fifth said he saw complainant place his hand on the mechanic's shoulder)
the Security Office determined that complainant pushed the mechanic.
The co-workers verified that the mechanic was a loudmouth, who frequently
yelled or shouted, was demanding and difficult to work with.
5 Complainant's first and second line supervisors also stated that they
had no knowledge of complainant's mental disability.