Gary J. Gregory, Complainant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionJul 10, 2000
01986248 (E.E.O.C. Jul. 10, 2000)

01986248

07-10-2000

Gary J. Gregory, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.


Gary J. Gregory v. Department of Energy

01986248

July 10, 2000

Gary J. Gregory, )

Complainant, )

) Appeal No. 01986248

v. ) Agency No. 96(155)SWPA

)

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

)

DECISION

INTRODUCTION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the agency

concerning his claim that the agency violated Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621

et seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C.

� 791 et seq.<1> The appeal is accepted by the Commission in accordance

with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R.

� 1614.405).

ISSUES PRESENTED

The issues presented herein are whether the complainant has established

that the agency discriminated against him based on age (over 40),

disability (injury to right knee), sex (male), and reprisal (prior EEO

activity) when: (1) he was not selected for the position of Transmission

Maintenance Manager, GS-1601-13; (2) he was not allowed to work on an

emergency project in Jonesboro, Arkansas, in June and July 1996; (3)

the rating he received on his 1993-94 performance appraisal was reduced

from �Outstanding� to �Highly Effective�; and (4) he was allegedly denied

travel expenses and was not allowed to stay overnight when testifying

at a Merit Systems Protection Board (MSPB) hearing.<2>

BACKGROUND

The complainant filed a formal complaint in August 1996 in which

he raised what have been identified above as Issues 1 through 4.

Following an investigation, the complainant did not request a hearing

and the agency issued a final decision (FAD) dated July 9, 1998, finding

no discrimination. It is from this decision that the complainant now

appeals.

Issue 1

During the period in question, the complainant was employed as a

Maintenance Lineman with the Southwestern Power Administration in Gore,

Oklahoma. In January 1996, the complainant applied for the position of

Transmission System Maintenance Manager, GS-1601-13 (the Position),

located in Jonesboro, Arkansas. The complainant was thereafter

interviewed by a five-member rating panel (the Panel) and received the

lowest score (63) of those interviewed. The record reveals that the

individual (the Selectee, 39) who received the highest score (85) from

the Panel was ultimately selected. At the time of his selection, the

Selectee was employed as the Maintenance Coordinator in Jonesboro, and,

in that capacity, had worked directly under the individual who previously

held the Position. The record also reveals that the Selectee had served

in the Position in an acting capacity when it initially became vacant.

The Position's selecting official (Responsible Official 1, RO 1) cited

several factors in support of his decision, including the Selectee's

relevant experience. This included, in particular, the Selectee's

supervisory experience. RO 1 also stressed the Selectee's good attitude

and noted, conversely, that while the complainant was qualified he �has

a hot temper and has difficulty getting along with other people of which

this job definitely requires since he would be the only supervisor in the

[a]rea.�

The complainant argues that his non-selection constitutes both retaliation

and age discrimination. Regarding the former basis, the complainant

argues that RO 1, who was his second-level supervisor, retaliated against

him for his participation in an EEO complaint that had been filed against

RO 1. Regarding the basis of age, the complainant cites a comment

allegedly made by the Director/Assistant Administrator for Maintenance.

Specifically, the record reveals that one of the complainant's co-workers

overheard this individual say that management wanted to �weed out� older

employees.

Issue 2

In June and July 1996, the agency sought volunteers to perform fiber

optics installation in Jonesboro. Although the complainant volunteered,

his request was denied because of restrictions regarding his ability

to climb. In this regard, the record contains a report from an

orthopedist (the Orthopedist) dated August 10, 1995, which states that

the complainant injured his right knee in October 1994 and had surgery

on it in January 1995. The report states that the complainant was

experiencing pain to the knee as a result of �[p]ostoperative residuals

of previous medical meniscectomy� and the Orthopedist recommended that,

as a safety precaution, the complainant should not �climb heights.� The

report states further, �Other than that, prolonged standing, walking,

lifting off and on may cause some discomfort in his knee as it does

everyone basically at his age after having a torn meniscus. There is

no contraindication to allowing one to do so, however.�

The record also contains a report from a physician (the Physician) with an

occupational health organization dated May 9, 1996, which states that the

complainant has loose cartilage in his right knee that causes him pain.

The Physician recommended that the complainant not perform any work that

requires him to climb either ladders or stairs and that he not lift

more than 50 pounds. Although the basis for the climbing restriction

is not explicit, it appears to be based on the complainant's statement

to the Physician that, although he has no trouble walking generally,

he has difficulty climbing stairs.

The complainant states that, despite his climbing restriction, he could

have performed the work at Jonesboro insofar as fiber optic cables are

installed using bucket trucks. The complainant also states that there

were other duties he could have performed that did not require climbing,

noting that an individual (Employee A) with more limitations than he

was afforded the opportunity to volunteer and perform that work.

The official (RO 2) in charge of the Jonesboro project testified that the

complainant was in the first pool of workers who volunteered, and that,

at the time he volunteered, the only work available required climbing.

Although RO 2 acknowledged that fiber optic cables can generally be

installed using a bucket truck, he explained that, because most of the

poles in Jonesboro are located in corn fields, they were not accessible

by truck. RO 2 stated that, for that reason, each pole had to be climbed

in order to install the cable. Regarding Employee A, the record reveals

that he was in the second and third pools of workers who volunteered and

that, at the time he initially volunteered, there was work available that

he was able to perform despite his limitations. The record reveals that

the complainant was not among the second pool of volunteers, and that,

at the time the third pool volunteered, he was in Denver.

Issue 3

In April 1994, the complainant received a rating of �Outstanding� from

his supervisor on his 1993-94 performance appraisal. The record reveals

that RO 1, in his capacity as the complainant's second-level supervisor,

reviewed the rating and lowered it to �Highly Satisfactory.� In support

of this decision, RO 1 testified that one of the complainant's co-workers

had performed better than the complainant yet received a lower rating.

RO 1 also stated that he believed the complainant's supervisor gave out

too many �Outstanding� ratings.

Issue 4

The final issue raised by the complainant involves his testimony at

an MSPB hearing in Tulsa in May 1996. The complainant alleges that

management discriminated against him by not offering to pay his travel

expenses and by not affording him the opportunity to stay overnight.

The record reveals that, although a number of employees at the

complainant's facility testified at the MSPB hearing, only one of them

actually stayed overnight in Tulsa. The record also reveals that the

complainant was reimbursed for his gas mileage.

ANALYSIS AND FINDINGS

Issue 1

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII case

is a three-step process. The complainant has the initial burden of

establishing a prima facie case. If the complainant meets this burden,

then the burden shifts to the agency to articulate some legitimate,

nondiscriminatory reason for its challenged action. The complainant must

then prove, by a preponderance of the evidence, that the legitimate reason

articulated by the agency was not its true reason, but was a pretext for

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

This analysis is equally applicable to claims brought under the ADEA. Loeb

v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

Because the Selectee is approximately 12 years younger than the

complainant, we find that he has established a prima facie case of

age discrimination. See O'Connor v. Consolidated Coin Caters Corp., 517

U.S. 308 (1996); Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981). The

record also reveals that, during the year prior to his non-selection,

the complainant engaged in EEO activity of which RO 1 was aware.

Consequently, we find that the complainant is able to establish a

prima facie case of reprisal. See Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,

545 F.2d 222 (1st Cir. 1976).

Now that the complainant has established a prima facie case, the agency

has the burden of articulating a legitimate, nondiscriminatory reason

for the challenged action. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). We find that the agency has met this burden.

Specifically, RO 1 testified that his selection decision was based

on a number of factors, the primary one being the Selectee's relevant

experience. Conversely, RO 1 indicated that he did not feel comfortable

selecting the complainant for a supervisory position in light of his

difficulty getting along with other employees.

At this point, the complainant bears the burden of establishing that the

agency's articulated reasons are a mere pretext for discrimination. The

complainant can do this either directly, by showing that a discriminatory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Id. at

256. In a non-selection case, pretext may be demonstrated where the

complainant's qualifications are shown to be plainly superior to those of

the selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

An employer, however, has the discretion to choose among equally

qualified candidates so long as the decision is not based on unlawful

criteria. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).

Having considered the complainant's various contentions, we find that

they are insufficient to establish pretext. Initially, although the

complainant argues that the Selectee did not possess the necessary

experience to perform in the Position, the evidence of record indicates

otherwise. Not only did the Panel give the Selectee the highest rating,

but the Selectee had served in the Position in an acting capacity,

and, prior to that, had worked for the Position's previous occupant.

Based on this evidence, the Commission finds the complainant has not

established that his qualifications for the Position were �plainly

superior� to those of the Selectee. Furthermore, even assuming that

a comment was made pertaining to the �weeding out� of older employees,

the official to whom it was attributed was not actively involved in the

selection process. Therefore, we find that this comment, by itself,

does not establish that the complainant was discriminated against based

on his age. Accordingly, the Commission finds insufficient evidence to

conclude that the complainant's non-selection was based on either his

age or his prior EEO activity.

Issue 2

To establish a prima facie case of disability discrimination, the

complainant must demonstrate that: 1) he is an �individual with

a disability� as defined in 29 C.F.R. � 1630.2(g);<3> 2) he is

a �qualified individual with a disability� as defined in 29

C.F.R. � 1630.2(m); and (3) the agency did not allow him to perform the

volunteer work at Jonesboro. Id. The complainant must also demonstrate

a causal relationship between his disabling condition and the decision

not to allow him to volunteer. An �individual with a disability� is

defined as someone who: (1) has a physical or mental impairment which

substantially limits one or more of such person's 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)(1)-(3). �Major life activities�

include functions such as caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. 29

C.F.R. � 1630.2(i).

The impairment identified by the complainant is that, as a result of the

injury and resulting surgery to his right knee, he has loose cartilage

that causes him pain. As a result of this impairment, the

Orthopedist recommended that the complainant should not climb heights.

Similarly, the Physician recommended that the complainant perform no

work that required climbing either ladders or stairs or that required

him to lift more than 50 pounds.

Initially, although lifting has been recognized as a �major life

activity,� the Commission finds that the complainant's inability to

lift more than 50 pounds does not substantially limit his ability

to lift. With regard to the climbing restriction, the Commission

finds that the record is not fully developed regarding the extent

to which the complainant's inability to climb stairs or ladders

without experiencing pain substantially limits a major life activity.

Even assuming, however, that this restriction was sufficient to render

the complainant an �individual with a disability,� the Commission finds

he has not established that he was qualified to perform the volunteer

work that was available. Specifically, the evidence of record supports

a finding that, at the time the complainant volunteered for the cable

installation work, the only work available required climbing. Not only

is it undisputed that the complainant was not permitted to climb, but

the one accommodation that was identified, i.e., bucket trucks, was not

possible insofar as most of the utility poles were located in corn fields.

Consequently, because the complainant has not demonstrated that he could

perform the work in question either with or without an accommodation, we

find he is not a �qualified individual with a disability.� Accordingly,

the Commission finds that the complainant has not established disability

discrimination with regard to this issue.

Although the complainant also alleges that the refusal to allow him to

volunteer was retaliatory, the record does not support such a finding.

Specifically, even assuming that the complainant could establish a

prima facie case of reprisal, the agency has articulated a legitimate,

nondiscriminatory reason for not allowing him to volunteer, i.e.,

his inability to climb. The Commission finds that the complainant has

offered nothing which demonstrates that this reason is pretextual.

Issue 3

As discussed, the complainant alleges that RO 1 retaliated against

him by lowering the rating on his 1993-94 performance appraisal from

�Outstanding� to �Highly Satisfactory.� The Commission notes, however,

that the complainant has not identified any EEO activity he engaged

in prior to that time. In this regard, the only EEO activity the

complainant has identified occurred in 1996. Accordingly, we find that

he is unable to establish a prima facie case based on reprisal, and,

as such, cannot establish retaliation with regard to this issue. See

Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425

F. Supp. 318 at 324.

Issue 4

Although the complainant alleges that he was discriminated against

based on sex, age, and reprisal when he was denied travel expenses for

attending the aforementioned MSPB hearing, we find that the record does

not support his position. Not only did he receive reimbursement for gas

mileage, but he has identified no other expense that he submitted a claim

for and did not receive. Furthermore, although the complainant says he

was not afforded the opportunity to stay overnight, it is not apparent

that he made such a request, and the record reveals that all but one

of the employees who testified at the hearing did not stay overnight.

Based on the foregoing, the Commission finds that the complainant has

not met his burden of demonstrating that he was either discriminated or

retaliated against with regard to this issue.

CONCLUSION

It is the decision of the Commission to AFFIRM the FAD and find the

complainant has not established that he was discriminated against as

alleged.

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).

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:

07-10-00

Date Frances M. Hart

Executive Officer

Executive Secretariat

01 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.

02 The Commission notes that the complainant did not raise every

basis for each issue. In particular, the basis of disability is only

applicable to Issue 2.

03 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.