01983649
03-09-2000
Ira C. Muse, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Ira C. Muse v. Department of Justice
01983649
March 9, 2000
Ira C. Muse, )
Complainant, )
) Appeal No. 01983649
v. ) Agency No. P-95-8792
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on the
bases of reprisal (prior EEO activity), age (47 years old), and physical
disability (back condition and internally deranged knee), in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> The appeal is accepted in accordance with
EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether complainant has established, by
preponderant evidence, that the agency discriminated against him on the
bases of age, physical disability, and reprisal when it failed to select
complainant for a Contract Specialist Position and used a voucher sheet
to evaluate him for the position.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a UNICOR Warehouse Supervisor, at the agency's Federal Correctional
Institution in Tallahassee, Florida. Complainant alleged that in August
1995, he was not selected for a Contract Specialist Position for which
he applied, due to his age (47), physical disability (back condition
and internally deranged knee), and reprisal.<2> Further, complainant
found a copy of a "vouchering form" which he believed favored younger,
healthier applicants.<3> Believing he was a victim of disparate treatment
and disparate impact, complainant sought EEO counseling and, subsequently,
filed a complaint on September 6, 1995. For relief, complainant requested
a promotion to a GS-11 position, back pay with interest, compensatory
damages, attorney's fees, and corrective measures to prevent this sort
of incident in the future. At the conclusion of the investigation,
complainant requested that the agency issue a final agency decision.
The FAD concluded that complainant established prima facie cases of
disability, age, and reprisal discrimination. The FAD further held that
complainant failed to show that the decision maker's explanation for her
selection was pretext for discrimination. Further, the FAD finds that
complainant failed to show how the "vouchering form" was used nor how it
had a disparate impact on any particular group. Therefore, the agency
found that the record failed to sustain complainant's assertions of
discrimination against him on the bases of age, disability, and reprisal.
Complainant failed to raise any new contentions on appeal.
ANALYSIS AND FINDING
Disability Discrimination
In its FAD, the agency found that complainant was disabled and protected
under the Rehabilitation Act based on complainant's previous complaint in
which they found him to be so. Upon review of the record, the Commission
finds that the agency erroneously concluded that complainant is disabled.
Complainant must first establish a prima facie case of disparate
treatment disability discrimination by showing that: (1) he is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g);<4>
(2) he is a qualified individual with a disability pursuant to 29 C.F.R. �
1630.2(m); and (3) he was subjected to an adverse personnel action under
circumstances giving rise to an inference of disability discrimination.
See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
We turn now to an examination of complainant's disability claim.
Initially, we must reach a threshold determination as to whether
complainant falls within the protection of the Rehabilitation Act of
1973. One bringing a claim of disability discrimination 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 oneself, 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 a physical (back condition and internally deranged knee) impairment.
However, whether complainant has impairments and those impairments affect
and substantially limit a major life activity present separate questions.
Based upon the record, the Commission finds that complainant's impairments
do not rise to the level of a disability that substantially limits a
major life activity.<5> Further, affidavits by agency officials and
complainant's co-workers indicate that complainant was not regarded as
having a disability which substantially limited a major life activity.
Although complainant has a record of being considered a disabled veteran,
this is not the same as being considered a person with a disability under
the ADA. The evidence does not show that complainant has a record of
having an impairment which substantially limits a major life activity.
Therefore, the Commission finds that complainant failed to demonstrate
that he is an individual with a disability as defined by the regulations.
Accordingly, we find that complainant failed to establish a prima facie
case of disability discrimination.
Reprisal Discrimination
Complainant also alleges that he was discriminated against on the basis
of reprisal. The Commission finds that complainant has not established a
prima facie case of reprisal discrimination because the deciding official
was unaware of his EEO activity. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed,
545 F.2d 222 (1st Cir. 1976).
Assuming, for argument's sake, that complainant established a prima facie
case of reprisal, the agency articulated a legitimate, nondiscriminatory
explanation for complainant's non-selection. The record indicates
that the agency was not motivated by retaliatory animus when it did not
select complainant. The record shows that the selecting official used
several factors in order to make her selection and there is no evidence
to suggest that complainant's prior EEO activity was one of these factors.
Therefore, the Commission finds that complainant failed to establish that
he was discriminated on the basis of reprisal when he was not selected
for the position.
Age Discrimination
Under the ADEA, complainant can establish a prima facie case of
discrimination by showing that: (1) he is at least forty (40) years old;
(2) he was qualified for the position; and (3) he was not selected for
the position. It is not necessary to show that he was accorded treatment
different from that given to a person otherwise similarly situated who
was not a member of his protected group or who was considerably younger
than he. See O'Connor v. Consolidated Coin Caterers Corp. 517 U.S. 308
(1996); Tarrell v. Department of Housing and Urban Development, EEOC
Appeal No. 01961030 (October 25, 1996).
Based upon a review of the record, the Commission finds that complainant
successfully established a prima facie case of age discrimination because
he demonstrated that he was over forty (40) years old, was qualified
for the position, and was not selected for the position in favor of
younger applicants.
Under the ADEA, however, complainant's ultimate burden is to establish
that age was a determining factor in his nonselection. Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979); Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998). In this regard,
although complainant asserts that none of the other candidates was as
qualified for the positions, complainant has not shown that age was the
determining factor in the agency's decision. The record shows that the
selecting officials took several factors into consideration and there
is no evidence to suggest that the age of the candidates was one of
these factors. The promotion board ranked complainant as one of the
five candidates but decided to offer the position to another candidate
who also ranked in the top five. Specifically, the agency argued that
complainant was not selected because he lacked the degree of interpersonal
skills, lacked the ability to organize and plan investigations, and lacked
the knowledge and understanding of innovative investigation techniques
as compared to the selectee. Accordingly, the Commission finds that
complainant failed to present evidence that the agency's selection was
motivated by age animus.
Disparate Impact
Complainant alleges that the agency's use of the vouching form had
a disparate impact on individuals with a disability and individuals
over the age of forty (40). In order to establish a prima facie case
of discrimination under a disparate impact analysis, complainant must
show that a challenged practice or policy disproportionately impacted
members of his protected class. Specifically, complainant must:
(1) identify the specific practice or policy challenged; (2) show a
statistical disparity; and (3) show that the disparity is linked to a
challenged policy or practice. Watson v. Fort Worth Bank and Trust, 487
U.S. 977, 994-995 (1988); Griggs v. Duke Power Co., 401 U.S. 424 (1971).
Upon review of the record, the Commission finds that complainant has
failed to establish a prima facie case of disparate impact, as he has
not provided any evidentiary or statistical support regarding his claim.
CONCLUSION
Therefore, after a careful review of the record, we affirm the final
agency decision which found no discrimination.
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:
March 9, 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:
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 Complainant states in his affidavit that due to his deranged right
knee, he does not have full flexibility in his leg, his knee swells,
and cartilage floats around inside his kneecap which creates irritation.
Complainant also stated that he injured his upper back which at times
prevents him from being able to bend over. However, he is on medication
which alleviates the pain.
3 The "vouchering form" is a form allegedly used during the interview
process which requires the individual vouchering to indicate the
candidate's name, appearance/professional image, weaknesses, and
collateral duties. Complainant argued that disabled and older candidates
who are evaluated based upon this system would be disadvantaged.
4 The Rehabilitation Act was amended in 1992 to apply the standards in
the American 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.
5 Complainant states in his affidavit that he feels that his impairment
is not substantially limiting and that it does not affect his ability
to perform the essential duties of his position.