01A02891
03-18-2003
Gerald S. Brock, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Gerald S. Brock v. Department of the Army
01A02891
March 18, 2003
.
Gerald S. Brock,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A02891
Agency No. ANBKF09703H0200
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), 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 pursuant to 29 C.F.R. �
1614.405.<1> For the following reasons, the Commission affirms the
agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Greens Manager (Superintendent), NF-4, of the golf course
located at the agency's Redstone Arsenal, Alabama. Complainant sought EEO
counseling and subsequently filed a formal complaint on November 7, 1996,
alleging that he was discriminated against on the bases of disability
(throat cancer), age (D.O.B. 12-21-35), and reprisal (prior protected
activity) when:
(1) effective March 19, 1996, he was assigned to a special project,
which also constituted a denial of reasonable accommodation; and
effective July 1, 1996, he was removed from employment.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but subsequently requested an immediate
final agency decision (FAD).
In its FAD, the agency concluded that complainant had not established
discrimination on any basis as to either claim. This appeal followed.
On appeal, complainant reiterates arguments raised below. The agency
requests that the Commission affirm its FAD.
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur. The burden then
shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient �to allow the trier of fact rationally to conclude�
that the agency's action was not based on unlawful discrimination.
Id. at 257. Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 511 (1993). This analysis, developed in
the context of Title VII proceedings, also applies to cases arising under
the ADEA. Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
In order to establish a disability discrimination claim under the
Rehabilitation Act, a complainant must demonstrate that: (1) he is
an �individual with a disability�; (2) he is �qualified� for the
position held or desired, i.e. can perform the essential functions
with or without accommodation; and (3) he was subjected to an adverse
employment action because of his disability. See Swanks v. WMATA,
179 F.3d 929, 934 (D.C.Cir. 1999); Heyman v. Queens Village Committee
for Mental Health for Jamaica Community Adolescent Program, 198 F.3d 68
(2d Cir. 1999). For claims of disparate treatment, where the agency
denies that its decisions were motivated by complainant's disability and
there is no direct evidence of discrimination, the Commission applies
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, supra. See Swanks, 179 F.3d at 933. For claims of
failure to provide reasonable accommodation, however, complainant need not
establish discriminatory intent. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, �Burdens of Proof� (revised October 17, 2002). For purposes of
this analysis, the Commission assumes, without deciding, that complainant
has established that he is covered by the Rehabilitation Act.
Reassignment/Accommodation
In March 1995, complainant was diagnosed with cancer, and underwent
treatment. Complainant did not stop working while in treatment.
Commencing in June 1995, in response to concerns raised by one of
complainant's subordinates, the agency investigated complainant's conduct.
The agency discovered the following: that complainant had, over a
period of years, repeatedly criticized his superiors to his subordinates,
stating that his superiors �didn't know a damn thing about running a golf
course,� and referring to his supervisors as �a bunch of goddamn idiots�;
complainant further had stated to a subordinate that he was soliciting
military retirees to help him oust his supervisor (the Business Manager);
complainant advised another subordinate to �burn� his sick leave before
leaving government service; and complainant had allowed subordinates to
operate dangerous equipment without adequate training and supervision.
An August 1995 suspension for misconduct was cancelled on account of a
procedural defect, but was reissued in November 1995.
Meanwhile, in August 1995 complainant submitted a note from his
physician stating that it would be �unwise� for complainant to continue
to work around pesticides. The agency repeatedly requested more specific
information from complainant's physician. In February 1996, complainant's
physician provided a letter stating that exposure to pesticides placed
complainant at risk for recurrence of cancer. Shortly thereafter, the
Business Manager contacted complainant, noting that he could not totally
avoid exposure to pesticides in his present position. The Business
Manager inquired whether complainant intended to accept the risk of
continued pesticide exposure or request retirement, or be separated from
service based on medical disqualification. Complainant's reply stated,
in its entirety, �My intentions are to perform the duties of my job
description to the best of my ability.�
Effective March 19, 1996, the agency assigned complainant to a special
project. Complainant was to review the standard operating procedures
(SOPs) in all areas of the Maintenance Operation and to modify, as
necessary, job descriptions and performance standards. Complainant was
assigned a new work location and was instructed not to contact Golf Course
Maintenance Employees without prior approval from the Business Manager.
Assuming that complainant has established a prima facie case of age,
disability, and reprisal discrimination, the Commission finds that
the agency's proffered explanation for its actions � complainant's
misconduct coupled with the need for complainant to avoid exposure
to pesticides � meets its burden of explanation. See Burdine, 450
U.S. at 253. Complainant has not adduced evidence sufficient to show
that the agency more likely than not was motivated by discriminatory
animus in this regard.
With regard to the matter of reasonable accommodation<2>, the Commission
finds that by assigning complainant to the special project, the agency
met its obligation to provide reasonable accommodation. Complainant has
not contested that contact with pesticides was unavoidable in his regular
duties, nor does he contest the direct threat to his safety posed by
such exposure. Rather, he expressed a willingness to subject himself to
that risk. The agency, however, was not obliged to allow him to do so.
See 29 C.F.R. �� 1630.2(r), 1630.15(2); Chevron USA, Inc., v. Echazabal,
___ U.S. ___, 122 S.Ct. 2045 (2002). Instead, it provided complainant �
while retaining his position as Greens Manager � with alternate duties
within his medical restrictions. This may not have been complainant's
preferred accommodation, but it met the agency's obligation to provide
reasonable accommodation. See Castaneda v. United States Postal Service,
EEOC Appeal No. 01931005 (February 17, 1994).
Removal<3>
In addition to the aforementioned investigation of complainant's treatment
of his subordinates, the record reflects that as early as November 1994,
the agency was investigating complainant's conduct regarding a lawnmower
previously owned by the agency. The agency determined that complainant
had directed a dysfunctional lawnmower to undergo extensive repair,
notwithstanding that the lawnmower was to be traded in at scrap value,
and that after the lawnmower had been traded in on the purchase of a
new one, complainant bought it at a favorable price.
On April 29, 1996, complainant was issued a notice of removal based
on the following charges: (1) that he endangered two subordinates
who handled pesticides by causing them to erroneously be removed from
a medical surveillance program and not be fitted for respirators; (2)
that he caused a pesticide toxic to fish to be broadcast into a pond,
and then misrepresented the amount of pesticide involved; and (3) that
he used his position to have repaired a lawn mower which he then further
used his position first to trade in, then to purchase at a favorable
price for his own benefit.
Complainant contested the charges. With regard to the first charge,
complainant argued that the employee responsible for the medical
surveillance program misconstrued his statement regarding the
contracting-out of pesticide application, and that he himself was not
properly instructed in the use of safety equipment. With regard to
the second charge, complainant contests the adequacy of the charge,
stating that it is not clear with what offense he is being charged.
With regard to the third charge, complainant denies that the decision
to trade in the old lawn mower for the new one, which made the lawnmower
available for purchase, was within his authority.
The Commission finds that the agency's explanation for complainant's
removal meets its burden of explanation. See Burdine, 450 U.S. at
253. The Commission further finds that complainant has not shown
this explanation to be a pretext for unlawful discrimination.
Although complainant disputes the charges, there is sufficient
evidence of record to support the agency's conclusions. Further,
the record reflects that complainant's relationship with the Business
Manager became contentious prior to both his diagnosis with cancer and
his EEO activity. The Business Manager attributes the decline in his
relationship with complainant to his determination, in November 1994, to
reassert authority which he had ceded to complainant in the day-to-day
operations of the golf course. In addition, beyond the bare fact that
the individual who ultimately replaced complainant as Greens Manager was
substantially younger than complainant, there is nothing to implicate
age as a consideration in complainant's removal.
Finally, with regard to whether complainant's removal constituted a
failure to provide reasonable accommodation, the Commission concludes
that complainant was removed on grounds of misconduct. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, the Commission affirms the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2003
__________________
Date
1This is the second appeal in this case. Previously, the Commission
issued a decision affirming the agency's dismissal of a claim related
to the agency reassigning what had been complainant's duties to another
employee, and placing that employee in complainant's former position
after his removal. Gerald S. Brock v. Department of the Army, EEOC
Appeal No. 01973506 (June 10, 1998).
2Complainant's failure to accommodate claim appears in an unusual posture.
Complainant did not initially allege failure to accommodate in his formal
EEO complaint. He subsequently raised the matter in an attempt to show
pretext with regard to his assignment to the special project, arguing
that if the reassignment were intended to accommodate his disability,
as the agency suggests, then it would not have waited until March 1996
to alter his duties. It is noted, however, that the assignment occurred
shortly after complainant's physician finally responded to the agency's
repeated requests for specific information regarding complainant's
medical restrictions.
3The agency did not specifically address complainant's removal in its
FAD. However, this matter was fully investigated and was briefed by the
parties on appeal. Under these circumstances, the Commission construes
the silence of the FAD as a de facto finding of no discrimination,
and will address the removal claim herein.