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.