01994646
12-13-2000
James R. Groom, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
James R. Groom v. Dept of the Air Force
01994646
December 13, 2000
.
James R. Groom,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01994646
Agency No. LE1C98021
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<1> For the reasons that
follow, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue on appeal is whether complainant has proven that the
agency discriminated against him based on disability (stroke-related
impairments) and reprisal (prior EEO activity) when it issued him a
letter of counseling.
BACKGROUND
On July 29, 1998, complainant filed a formal complaint alleging that
he was the victim of unlawful employment discrimination on the bases
of disability (stroke-related impairments)<2> and reprisal (prior EEO
activity) when his supervisor<3> issued him a letter of counseling.
Specifically, the letter dated May 22, 1998, counseled complainant for:
failing to report in writing a cash shortage of a register and the
counseling of the employee whose register had said shortage;
using the organization facsimile machine (fax) for personal use and
failing to log outgoing faxes<4>;
failing to correct problems independently, as the assistant manager,
and instead leaving the problems for the manager to address<5>.
The supervisor indicated that he issued the letter to improve
complainant's performance because past verbal counseling did not work.
However, complainant indicated the letter was based on his disability
and his prior filing of two EEO complaints as well as criminal charges
against agency personnel.
Following an investigation of this complaint, the agency informed
complainant of his right to request either an EEO administrative hearing
or an immediate FAD. Complainant did not notify
the agency of his election, therefore, it issued a FAD on April 30,
1999 finding no discrimination. This appeal followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the complainant to establish a prima facie case
of discrimination. Id. at 802. The burden then shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its challenged
action. Id. If the agency is successful, the complainant must then
prove that the legitimate, nondiscriminatory reason articulated by the
agency is merely pretext for its discrimination. McDonnell Douglas,
411 U.S. at 804. This analysis is applicable to complainant's claim of
disability discrimination<6> as well as reprisal<7>.
Disability Discrimination
The Rehabilitation Act prohibits discrimination against qualified
individuals with a disability. In order to establish disability
discrimination, complainant must first show that: (1) he is an individual
with a disability, as defined by 29 C.F.R. � 1630.2(g)<8>; (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, 662 F.2d 292.
We turn now to an examination of complainant's disability claim.
Initially, we must reach a 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
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. EEOC Regulation 29 C.F.R. � 1630.2(i).
Complainant suffered a stroke on January 1, 1995 which left his
right side and extremities weak and impaired his ability to speak.
Specifically, complainant has limited dexterity in his right hand, has
trouble converting ideas into words which causes him to speak slowly,
has problems stepping onto uneven surfaces without support, and walks with
a limp. Viewing complainant's impairments in total, the Commission finds
that complainant is a person with a disability because he is substantially
limited in his walking and speech communication. We further find that
complainant is a qualified individual with a disability because he was
able to perform the essential functions of the position at issue herein.
29 C.F.R. � 1630.2(m).
The only question remaining is whether complainant suffered an adverse
action by the agency under circumstances which infer discrimination.
We find that he did not. On May 22, 1998, complainant's supervisor
issued him a letter of counseling regarding his failure to report a cash
shortage on a register, his personal use of the fax machine and failure
to log outgoing faxes, and his failure to resolve problems independently.
The Commission notes that in reference to issue two, in his affidavit,
complainant states �I can't say for certain if [my supervisor] is aware
of what specific employees who are not following procedures with respect
to the fax, but I know that probably 50 to 75 per cent of faxes are
not properly logged.� Also, complainant's coworker affirmed that she
witnessed only complainant fail to log faxes. In addition, in 1998, two
employees in complainant's organization received notices of reprimand,<9>
neither of whom had a disability. Finally, complainant did not show
that there was a nexus between his disability and any of the actions
the letter of counseling addressed. See Mackey v. USPS, EEOC Appeal
No. 01931771 (Apr. 28, 1994). As such, we discern no basis for finding
that complainant has established discrimination based on disability.
Reprisal
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: (1) that he engaged
in protected activity, e.g., participated in an EEO proceeding; (2)
that the alleged discriminating official was aware of the protected
activity; (3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and (4)
that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt, 425 F. Supp. at 324,
affirmed, 545 F.2d 222; see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Complainant failed to establish a prima facie case of retaliation
because he satisfied only three of the four required elements.
Complainant engaged in protected activity when he filed five formal
complaints prior to the one at hand. In this complaint, he alleged
that his supervisor issued him a letter of counseling<10>, dated May
22, 1998, in retaliation for two EEO complaints he filed in 1995 and
1996<11>, both of which settled in December 1996. However, there was
no link between the letter and the prior EEO activity because they
were more than a year apart. Patton v. Department of the Navy, EEOC
Request No. 05950124 (June 27, 1996). Complainant also filed criminal
charges against three agency personnel, however, the charges alone do
not constitute protected activity. Based on the foregoing, we find that
complainant has not established that the agency retaliated against him.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the agency's final decision and
find that complainant has not established that the agency discriminated
against him.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
December 13, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2On January 1, 1995, complainant suffered a stroke which caused weakness
to his right leg, arm, and side, impaired his ability to articulate words,
and caused him to walk with a limp. The record did not contain medical
documentation of complainant's disability.
3The alleged discriminating official (ADO) who issued the letter of
counseling was not complainant's rating supervisor. Complainant was
the assistant manager at the bowling alley and the golf course for six
months each, per year. The ADO was the interim golf course manager.
4Complainant indicated that the faxes at issue were sent to his attorney
regarding complaints against the agency. He also stated that he was
repeatedly interrupted by agency business and forgot to log the faxes.
5In the letter of counseling, the supervisor stated: �This does not mean
you personally have to do the work; you have people on your shift that
can correct or attempt to correct many of these actions. If they cannot
be corrected by your shift then leave me a message.�
Complainant indicated that all workers on his shift serviced customers,
therefore, were unable to assist him with problems.
6Prewitt v. U.S. Postal Serv., 662 F.2d 292, 305 & n.19 (5th Cir. 1981).
7Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318,
(D. Mass. 1976), affirmed, 545 F.2d 222 (1st Cir. 1976).
8The 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.
9A notice of reprimand differs from a letter of counseling in that the
latter is not included in the individual's official personnel folder.
Only one of the employees was reprimanded by the ADO in this complaint.
10Complainant indicated the letter adversely affected him because he
received Less than Satisfactory on his October 23, 1998 performance
appraisal. The ADO, in his affidavit, indicated he may have given
complainant's rating supervisor a copy of the letter because he was
responsible for providing him with input on complainant's performance.
11The ADO admitted that he knew of complainant's prior EEO activity,
although, not in detail.