Herbert M. Parcover, Complainant,v.Shirley Ann Jackson, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01972704 (E.E.O.C. Apr. 26, 2000)

01972704

04-26-2000

Herbert M. Parcover, Complainant, v. Shirley Ann Jackson, Chairman, Nuclear Regulatory Commission, Agency.


Herbert M. Parcover v. Nuclear Regulatory Commission

01972704

April 26, 2000

Herbert M. Parcover, )

Complainant, )

) Appeal No. 01972704

v. ) Agency No.

)

Shirley Ann Jackson, )

Chairman, )

Nuclear Regulatory Commission, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of religion (Jewish)), and physical disability (symptoms of

heart condition and stress), in violation of Title VII of the Civil

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

Rehabilitation Act of 1973,<1> as amended, 29 U.S.C. � 791, et seq.<2>

Complainant alleges he was discriminated against when: (1) he was denied

a within-grade increase on October 3, 1995; (2) he received an unfair

performance appraisal of "Minimally Successful"on November 5, 1995; (3) he

was denied a transfer during 1995 to accommodate his disability; and (4)

subjected to reprisal due to his request for such an accommodation. The

appeal is accepted in accordance with EEOC Order No. 960.001. For the

following reasons, the Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was

employed as the Chief, Reports and Information Management Branch

(GG-343-14), at the agency's Office of Information Resources Management.

Believing he was a victim of discrimination when the above incidents

occurred, complainant sought EEO counseling and, subsequently, filed

a complaint on March 15, 1996. At the conclusion of the investigation,

complainant's counsel requested a hearing, but the agency rejected this

request on the grounds that it was untimely made and then issued a FAD.

As to issue (2) above, the FAD concluded that complainant established

a prima facie case of religious discrimination when he demonstrated

that similarly situated employees not in his protected group did not

receive a Minimally Successful performance rating. Yet the FAD also

noted that the complainant's performance deficiencies were a legitimate,

nondiscriminatory reason for the agency's action which the complainant

failed to show was a pretext for discrimination. Thus, according to

agency regulations, the complainant's scheduled within-grade increase

had to be denied because of his Minimally Successful performance rating

(issue (1) above). The FAD further concluded that complainant failed to

establish a prima facie case of physical disability discrimination because

he did not show that he was a qualified person with a disability. Thus,

an obligation to accommodate the complainant with a transfer never arose

(issues 3 and 4 above).

On appeal, complainant's attorney contends that the agency failed to

consider a number of his arguments. The agency requests that we affirm

its FAD, and includes evidence to rebut the arguments of complainant's

attorney.

We will first address the procedural issue of whether the agency properly

issued its FAD without first referring the case to the EEOC for a hearing.

We note that the agency's notice of hearing rights gave specific

instructions on the time limits for submitting a hearing request, that

complainant's attorney acknowledged that his request for a hearing was

untimely, and that he failed to provide a sufficient reason for equitable

tolling of the time limits for requesting a hearing under EEOC Regulation

29 C.F.R. � 1614.604(c). In this regard,while complainant's attorney

states on appeal that the request for a hearing was late in part because

he was negotiating a possible settlement with the agency, in his letter

of November 20, 1996, he requests a hearing "to preserve my client's

rights ... if the case does not settle," thereby contradicting himself.

Next, after a careful review of the record, based on McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), Prewitt v. United

States Postal Service, 662 F.2d 292 (5th Cir. 1981), and Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318

(D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell

Douglas to retaliation cases), the Commission agrees with the agency

that complainant failed to establish that the agency's legitimate,

nondiscriminatory reasons for giving him a Minimally Successful

performance rating and, consequently, denying him a scheduled

within-grade increase, were a pretext for discrimination. In reaching

this conclusion, we note that the preponderance of the evidence shows that

the complainant's performance was clearly deficient, fully justifying the

Minimally Successful rating, and, consequently, that agency regulations

mandated that the complainant's scheduled within-grade increase be

denied. In this regard, the record shows that other employees besides

the complainant's immediate supervisor (IS) identified the complainant's

performance problems, including a former supervisor, a peer Section Chief,

and his subordinates. In contrast, the complainant provides no reason

to believe that his religion was a factor in his performance rating and

not his performance deficiencies.

We will next address the issue of whether the complainant was subjected

to disability discrimination by the agency. The agency found that the

complainant failed to establish a prima facie case because he did not

show that he was a qualified individual with a disability. On appeal,

the complainant contends that he suffers from stress and stress-related

hypertension as a result of working for his IS, which affects his major

life activity of working, and that the agency could accommodate his

disability by reassigning him to another supervisor.

We note that to be a qualified individual with a disability, complainant

must establish that his medical condition meets the regulations set forth

at 29 C.F.R. � 1630.2(g). See Waller v. Department of Defense, EEOC

Request No. 05940919 (April 6, 1995); Bailey v. U.S. Postal Service, EEOC

Appeal No. 01952545 (March 7, 1996). Without proper medical documentation

of the substantial limitation of the major life activity of working,

the complainant would not be an "individual with a disability" under

the above regulations.

In this regard, the complainant submitted a report from his primary

physician that complainant's work situation brought about such

stress-related symptoms as "elevated blood pressure, chest discomforts,

generalized anxiety and sleeplessness." Complainant's psychiatrist found

that the situation with complainant's IS "resulted in the progression of

[complainant's] physical and emotional symptoms" and that complainant's

"daily life and function, personally and professionally, have been

deeply affected."

We find under the above regulations that complainant's medical

documentation is too particularized to one work situation and

the stress it caused to support the conclusion that the major life

activity of working was permanently and substantially limited by the

complainant's relationship with his IS. In reaching this conclusion,

we note complainant's statement that "[t]he stress of dealing with [the

IS's] continual harassment does not allow Complainant to perform in his

position as he can and or as well as he has under different supervision."

Yet the Commission has held that "[a]n individual is not substantially

limited in the ability to work simply because ... he/she cannot perform

one particular job." Guillory v. Navy, EEOC Appeal No. 01945298 (January

24, 1996). Furthermore, an individual is deemed substantially limited

in working only where he is "restricted in a class of jobs or in a broad

range of jobs in various classes" [italics added]. Starling v. United

States Postal Service, f.n. 10, EEOC Appeal No. 01953959 (January

16. 1997). Hence, we also agree with the agency that complainant failed

to establish a prima facie case of disability discrimination.

Therefore, after a careful review of the record, including complainant's

other contentions on appeal, the agency's response, and arguments and

evidence not specifically addressed in this decision, we affirm the FAD.

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:

April 26, 2000

Date Carlton M. Hadden, Acting Director

1The 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.