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.