James R. Groom, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 13, 2000
01994646 (E.E.O.C. Dec. 13, 2000)

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.