01980571
06-29-2001
I. Bruce McMillian, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
I. Bruce McMillian v. Department of Housing and Urban Development
01980571
June 29, 2001
.
I. Bruce McMillian,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01980571
Agency No. AT 94 10
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.; and the Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of sex
(male), race (Black) and disability (nervous/anxiety disorder) when his
second line supervisor (S2) changed three of his performance appraisal
elements from Outstanding to Highly Successful, which gave him an overall
rating of Highly Successful for the appraisal period ending September
30, 1993. Complainant further alleged discrimination on the basis of
disability when he was denied a reasonable accommodation when S2 denied
him a transfer and issued him a Letter of Warning about his conduct.
For the following reasons, the Commission AFFIRMS the agency's FAD.
The record reveals that during the relevant time, complainant was employed
as a GS-12 Equal Opportunity Specialist at the agency's Atlanta Field
Office (�facility�) in the Office of Fair Housing and Equal Opportunity
(FHEO). In March of 1993, complainant was permanently assigned from
the facility's Title VII Investigations Branch of FHEO to a special
backlog reduction project in the Intake/Conciliation Branch of FHEO.
Complainant contended at the time of his reassignment that he had a
nervous disorder for fifteen years which affected his ability to remember,
to stay focused and to be around many people. Complainant further
stated that he was on medication to help him cope with anxiety and that
he suffers from headaches, dizziness and physical imbalances and that he
sees a psychiatrist and participates in group sessions every few weeks.
In addition, complainant stated that when he applied for his initial
position with FHEO, he informed the agency and all of his managers about
his disorder so he was able to take sick leave for medical appointments.
Complainant alleges that he sought the reasonable accommodation of being
transferred back to his position with the Title VII Investigations Branch
of FHEO in October of 1993, but the agency did not accommodate him.
Believing he was a victim of discrimination for the above-stated agency
actions, complainant sought EEO counseling and subsequently filed a formal
complaint on January 19, 1994. 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a FAD.
The FAD found that complainant failed to establish a prima facie case
of disability discrimination, as he failed to provide information from
a physician describing specifically what his impairment was and what
accommodation was required. In addition, the FAD found that complainant
failed to demonstrate that the agency failed to accommodate any disability
which he may have had.<1>
Nevertheless, the FAD considered the agency's legitimate,
nondiscriminatory reasons for its actions with regard to complainant.
The FAD considered the testimony of the Director of the Fair Housing
Enforcement Division (Director; Black female) who testified that she
and S2 made a joint decision to rate complainant as Highly Successful
rather than Outstanding as he failed to consistently log his telephone
contacts with parties throughout the year, had difficulty getting along
with others in FHEO and as the overall quality of his work did not merit
an Outstanding rating. In addition, the FAD noted the testimony of the
Director, who stated that she did not observe complainant to have any
kind of impairment and that she was never informed of any disability
he may have had. The Director further stated that when complainant
did request an accommodation on October 13, 1993, he did not state the
nature of his disability, nor did complainant provide documentation from
a physician regarding his mental condition or possible disability, even
after management requested medical verification in November of 1993 in
response to his request for an accommodation.
The FAD further found that complainant failed to demonstrate that
the agency's articulated reasons were more likely than not a pretext
for discrimination. In so finding, the FAD found that complainant's
supervisor (S1) stated that he was unaware of complainant having any kind
of disability and that complainant never told him of any impairment he
may have suffered from. In addition, the FAD found that the evidence
supported S2's contention that complainant received a Highly Successful
rating as he did not consistently keep his file logs updated and due
to his interaction with others. Further, the FAD found the evidence
established that S2 treated complainant and a comparative White female
complainant-worker identically in that she lowered the proposed rating
for both employees for the element regarding getting along with others.
The FAD found that complainant was not subjected to discrimination when
he was issued a Letter of Warning concerning his conduct during a meeting
held on November 2, 1993.
Regarding complainant's claim that he was denied reasonable accommodation,
the FAD found that complainant failed to establish that he was a qualified
individual with a disability, and there is no evidence that complainant
explained the nature of any impairment he suffered from to anyone in
the agency. In addition, complainant did not provide the requested
doctor's information to management so as to determine the appropriate
accommodation he required. Finally, the FAD noted that complainant was
transferred back to Title VII Investigations when his special project
ended some two months later. Neither complainant nor the agency have
made contentions on appeal.
After consideration of the evidence of record, the Commission concludes
that complainant failed to establish a prima facie case of sex, race or
disability discrimination when S2 changed his performance appraisal to
Highly Successful, as there is no evidence of similarly situated employees
not in complainant's protected groups who were treated differently.
In so finding, the Commission notes that a similarly situated White female
also had her performance appraisal changed from Outstanding to Highly
Successful by S2 after consultation with the Director. In addition,
the Commission agrees with the FAD's finding that complainant failed to
establish a prima facie case of disability discrimination. Even assuming,
arguendo, that complainant is a qualified individual with a disability,
there is insufficient evidence in the record to demonstrate that he
notified agency management of any specific disability he may have
suffered from, such that the agency could have properly considered a
reasonable accommodation. The Commission agrees with the FAD's finding
that complainant failed to provide medical documentation regarding his
disability after management requested it in November of 1993 in response
to his request for accommodation. An agency is entitled to know that an
employee or applicant has a covered disability that requires a reasonable
accommodation. Thus, when a disability and/or need for accommodation is
not obvious, the agency may require that the individual provide reasonable
documentation about the disability and his/her functional limitations.
See EEOC Policy Guidance on Executive Order 13164 Establishing Procedures
to Facilitate the Provision of Reasonable Accommodation, EEOC Notice
No. 915.003 (October 20, 2000); see also Enforcement Guidance: Reasonable
Accommodation & Undue Hardship, EEOC Notice No. 915.002 at p. 8 (March 1,
1999); Randel v. Dept. of the Navy, EEOC Petition No. 03960061 (August
8, 1996). We find the evidence credible that agency management did
not know of complainant's impairment as it was not obvious, such that
the agency's request for medical documentation was reasonable prior
to reaching a determination on complainant's request for accommodation.
Further, the Commission finds no evidence in the record which demonstrates
that the Letter of Warning was issued due to complainant's disability.
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, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 29, 2001
__________________
Date
1 The FAD did not address whether complainant established a prima facie
case of race or sex discrimination regarding his allegation that his
performance appraisal was discriminatorily changed from Outstanding to
Highly Successful.