I. Bruce McMillian, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01986178 (E.E.O.C. May. 16, 2000)

01986178

05-16-2000

I. Bruce McMillian, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


I. Bruce McMillian v. Department of Housing and Urban Development

01986178

May 16, 2000

I. Bruce McMillian, )

Complainant, )

) Appeal No. 01986178

v. ) Agency No. AT-95-08

)

Andrew M. Cuomo, )

Secretary, )

Department of Housing and Urban )

Development, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination on

the bases of race (African-American), sex (Male), reprisal (prior EEO

activity), and mental disability (somatic and emotional), 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, as amended, 29 U.S.C. �

791, et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented is whether complainant established by preponderant

evidence that the agency discriminated against him on the bases of

race, sex, mental disability, and reprisal,<2> when the agency failed

to provide him a reasonable accommodation.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

in the Fair Housing Enforcement Division, Branch A. Complainant alleged

that on May 6, 1994, he gave management a note from his psychiatrist.

The note stated that complainant has been receiving treatment for

somatic and emotional problems and that he appeared to be experiencing

difficulties related to stress. Complainant's physician strongly

recommended that complainant be transferred to another division and

placed under different management to aid his recovery. The agency did

not respond to his request.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on April 25, 1995.

Complainant also alleged that the agency only responded to his request

after he initiated his complaint. Complainant was reassigned from his

previous position to the Enforcement Division, Investigations Branch,

however, this reassignment was a result of changes within the agency

rather than his request for accommodation. At the conclusion of the

investigation, complainant requested that the agency issue a final

agency decision.

The FAD concluded that complainant established a prima facie case of

racial discrimination, however, it also determined that complainant

failed to establish prima facie cases of sex, reprisal and disability

discrimination. The FAD further determined that management provided

legitimate, nondiscriminatory reasons for its action and complainant

failed to establish that management's reasons were pretext for

discrimination. Accordingly, the FAD concluded that complainant failed

to show that the agency's action was discriminatory. Complainant's appeal

is from this decision.

ANALYSIS AND FINDINGS

Generally, discrimination claims are examined under the tripartite

analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F. 2d 1003 (1st

Cir. 1979). Complainant must first establish a prima facie case of

discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. McDonnell

Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567

(1978). Next, the agency offers rebuttal to complainant's inference of

discrimination by articulating a legitimate, nondiscriminatory reason

for its action(s). See Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); see also United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met

its burden, the complainant bears the ultimate burden to persuade the fact

finder by a preponderance of the evidence that the reasons offered by the

agency were not the true reasons for its actions but rather were a pretext

for discrimination. St. Mary's Honor Cent. v. Hicks, 509 U.S. 502 (1993).

Reasonable Accommodation Claim

Under the Commission's regulations, an agency is required to make

reasonable accommodation of the known physical and mental limitations of

a qualified individual with a disability unless the agency can show that

accommodation would cause an undue hardship. 29 C.F.R. � 1630.9(a).<3>

Complainant must first establish a prima facie case by showing that he is

an individual with a disability, as defined by 29 C.F.R. � 1630.2(g). That

is, complainant must first establish that he is a member of the class of

persons protected by the Rehabilitation Act, i.e., a qualified individual

with a disability.

An individual with a disability is one who: (1) has a physical or mental

impairment that substantially limits one or more 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). The Commission has defined

"substantially limits" as "[u]nable to perform a major life activity

that the average person in the general population can perform" or

"[s]ignificantly restricted as to the condition, manner or duration

under which an individual can perform a particular major life activity

as compared to the condition, manner, or duration under which the

average person in the general population can perform that same major

life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities

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

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

EEOC Regulation 29 C.F.R. � 1630.2(i).

Upon review of the record, we find that complainant demonstrated that

he has mental impairments as evidenced by the accommodation request from

his physician, but failed to establish that those impairments affect and

substantially limit a major life activity. The Commission finds that

complainant failed to provide any evidence to demonstrate the extent

of his impairments or to describe the effects of the impairments on his

ability to function. Complainant only offered his psychiatrist's note and

averred that his mental conditions cause symptoms such as headaches and

dizziness. Complainant failed to provide any other evidence to explain

the extent of his conditions or how the conditions affects him.<4>

The Commission finds that complainant failed to demonstrate that his

impairments substantially limit a major life activity. Further, the

Commission notes that complainant did not demonstrate that he has a record

of an impairment which substantially limits a major life activity or

that the agency regarded him as having such an impairment. Accordingly,

the Commission finds that complainant failed to establish that he is a

qualified individual with a disability under the Rehabilitation Act.

Sex, Racial, and Reprisal Discrimination Claims

The Commission now turns to complainant's claim that management delayed

its review of his accommodation request and subsequently denied such

a request because of his sex, race, and in reprisal for his protected

activity. Although the initial inquiry in a discrimination case usually

focuses on whether the complainant has established a prima facie case,

following this order of analysis is unnecessary when the agency has

articulated a legitimate, nondiscriminatory reason for its actions. See

Washington v. Department of the Navy, EEOC Petition No. 03900056

(May 31, 1990). In such cases, the inquiry shifts from whether the

complainant has established a prima facie case to whether he or she has

demonstrated by preponderance of the evidence that the agency's reasons

for its actions merely were a pretext for discrimination. Id. See also

Aikens, 460 U.S. at 714-717.

Upon review of the record, the Commission finds that the agency

articulated legitimate, nondiscriminatory reasons for its action.

Specifically, the agency argued that complainant failed to provide

adequate medical evidence in order for the agency to grant his request

for an accommodation. Further, the agency stated that the reason for

its delay in their response was due to restructuring of the agency

which delayed its response to complainant's request. Therefore, the

burden shifts to complainant to establish that the agency's reasoning is

pretext for discrimination. Upon review of the record, the Commission

finds that complainant was unable to show that the agency's reasons were

a pretext for discrimination.

CONCLUSION

Therefore, after a careful review of the record, we affirm the FAD.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 16, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1 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.

2 The record indicates that complainant previously filed an EEO complaint

(Agency No. AT 94-10).

3 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.

4 The Commission also notes that the agency requested medical

documentation in order to evaluate complainant's accommodation request.

However, complainant refused to provide additional information.