01970011
02-11-2000
James R. Holtgrewe, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation,) Agency.
James R. Holtgrewe v. Federal Deposit Insurance Corporation
01970011
February 11, 2000
James R. Holtgrewe, )
Complainant, )
)
v. ) Appeal No. 01970011
) Agency No. FDIC9538
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance Corporation,)
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq., the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are whether complainant has established that the
agency discriminated against him:
(1) based on age (40), disability (legal blindness, gout, depression),
and reprisal (1988 EEO complaint) when: (a) he received an
unsatisfactory job performance evaluation from Bank Examiner 1 on
April 21, 1995, based on his participation in a bank examination which
commenced on March 20, 1995; (b) he received an inaccurate annual
performance appraisal on May 1, 1995, from his immediate supervisor,
covering the period April 25, 1994, through April 25, 1995; (c) he
received a negative progress report on May 30, 1995, from Bank Examiner 2
based upon his participation in a bank examination; and (d) he received
a negative progress report on June 16, 1995, from Bank Examiner 3 based
upon his participation in a bank examination; and
(2) based upon disability (depression) when he received an unsatisfactory
job performance evaluation on May 5, 1995, from Bank Examiner 4, based
upon his participation in a bank examination which commenced on April
17, 1995.
BACKGROUND
In a complaint dated June 24, 1995, complainant, then an Assistant
Bank Examiner, GG-9, alleged that the agency discriminated against
him as delineated in the above-entitled statement "Issues Presented."
The agency conducted an investigation, provided complainant with a
copy of the investigative report, and advised complainant of his right
to request either a hearing before an EEOC administrative judge (AJ)
or an immediate final agency decision (FAD). No response was received.
On September 13, 1996, the agency issued a FAD finding no discrimination.
It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden the complainant must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that the complainant must present
a body of evidence such that, were it not rebutted, the trier of fact
could conclude that unlawful discrimination did occur. The burden then
shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination. Id. at
257. Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256. This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
In the instant case, complainant is a member of the protected age group,
over 40. However, he has adduced no evidence whatsoever from which
the existence age discrimination may be inferred. Complainant has not
identified any similarly situated person outside of his protected age
group, or substantially younger than he, whom he alleges was treated
more favorably; nor has he produced any other evidence indicative of
age-discriminatory animus on the part of any of the agency officials
named in his complaint. Accordingly, complainant has not established
a prima facie case of age discrimination.
Courts have adopted and applied the Title VII burdens of proof, see supra,
to disability discrimination. See Norcross v. Sneed, 755 F.2d 113 (8th
Cir. 1985); Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
In order to establish a prima facie case of disability discrimination,
complainant must prove, by a preponderance of the evidence, that he was
treated differently than individuals not within his protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of complainant. See Sisson v. Helms,
751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
As a threshold matter, complainant must establish that he is a "qualified
individual with disability" within the meaning of the Rehabilitation Act.
The Act's implementing regulation defines "individual with disability"
as a person who has, has a record of, or is regarded as having a physical
or mental impairment which substantially limits one or more of that
person's major life activities: self-care, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. ��1630.2(g), (h), (j).<1> The regulation defines a "qualified
individual with disability" as a person "who, with or without reasonable
accommodation, can perform the essential functions of the position in
question ...." 29 C.F.R. �1630.2(m).
Here, complainant has alleged that he is actually disabled based on the
conditions of legal blindness, gout, and depression. The evidence of
record, however, does not support such a finding. With regard to his
allegation that he is "legally blind," complainant submitted a business
card from his optician bearing the notation that complainant's uncorrected
vision is 20/400 in each eye. However, complainant acknowledges that
his vision is fully correctable with eyeglasses. Because the existence
of a disability, i.e., whether a condition is substantially limiting,
is to be assessed with regard to ameliorative measures, see, e.g.,
Sutton v. United Airlines, Inc., ___ U.S. ___, 119 S.Ct. 2139 (1999),
the Commission finds that complainant is not substantially limited in
his ability to see. With regard to the condition of gout, complainant
has submitted no evidence explaining whether and to what extent this
condition limits any identifiable major life activity.<2> With regard
to the condition of depression, complainant submitted evidence from his
physician in which the diagnosed condition is actually identified as
"adjustment disorder with anxious and depressed features" which "mildly
affected his concentration and level of stress." The physician concluded,
"I believe the condition to be mild and I do not believe it is likely to
have any significant impact on his functioning in his current situation."
In a separate letter, the physician noted that the prescription drug
Zoloft, which complainant takes, has various possible side-effects,
but did not state that complainant was experiencing any of them.
The physician stated, rather, that side effects from the medication were
"quite rare," and noted that the medication should not interfere with
complainant's job performance.
Based upon the foregoing, the Commission concludes that complainant
does not have an actual disability. Further, the record contains no
evidence that complainant has a record of disability, or that any agency
official regarded complainant as having a disability. Accordingly, the
Commission finds that complainant is not an "individual with disability"
within the meaning of the Rehabilitation Act, and is not entitled to
the Act's protection.
Complainant also alleged discrimination based on reprisal. The Commission
finds that complainant has established a prima facie case of reprisal
with regard to issues 1a, 1b, and 1d. Complainant engaged in protected
activity by filing an EEO complaint in 1988 regarding his removal for
unsatisfactory job performance. Complainant's immediate supervisor and
Bank Examiners 1 and 3 were aware of complainant's prior EEO activity;
Complainant subsequently was disadvantaged by receiving unfavorable
performance reviews and an unfavorable annual evaluation; and these events
followed complainant's 1994 reinstatement pursuant to his previous EEO
complaint closely enough in time that a causal connection fairly may
be inferred. See Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed, 545 F.2d
222 (1st Cir. 1976); 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).
Because Bank Examiners 2 and 4 were not aware of complainant's prior EEO
activity, however, a prima facie case is not established as to issues
1c and 2.
The agency explained that the performance evaluations generated by Bank
Examiners 1 and 3 (issues 1a and 1d) resulted from each Bank Examiner
observing and evaluating complainant's performance at separate bank
examinations. In both instances, the Bank Examiners cited numerous
deficiencies in complainant's performance, including weak overall skills
and mistakes which required considerable correction by the Bank Examiner.
It is noted that these evaluations were consistent with the evaluations
provided by Bank Examiners 2 and 4, who were not aware of complainant's
prior EEO activity. With regard to the annual performance appraisal,
complainant's immediate supervisor explained that the appraisal was based
on input received from the Bank Examiner In Charge (EIC) in each of 20
bank evaluations in which complainant participated. The supervisor noted
that he had no input into the individual bank evaluations. The evidence
regarding complainant's performance was further corroborated by the
Training Coordinator and two additional Bank Examiners, who characterized
complainant's work variously as inconsistent, incomplete, and inaccurate,
erroneous, and "poor." This explanation is sufficient to meet the
agency's burden.
The burden now shifts to complainant to demonstrate that the agency's
explanation was merely a pretext for reprisal discrimination. Complainant
argued that pretext was shown because he was the only employee who
always had two people present when he received his evaluations, he
was assigned an individual training coordinator, and he was required
to have biweekly meetings regarding his work performance. As noted by
the agency, however, complainant was the only Assistant Bank Examiner,
and was the only employee demonstrating performance problems. Further,
complainant did not deny that his reports contained grammatical errors,
incorrect or incomplete data, and mistakes in calculations. Rather,
he attempted to explain away why these errors and omissions should not
be counted; for example, that he should have been able to rely upon the
completeness and accuracy of data provided by a bank under evaluation.
Complainant further argued and submitted evidence that his performance
had been evaluated as satisfactory in connection with other work he
performed. Complainant's evidence is not sufficient to cast doubt on the
credibility of the agency's proffered explanation that he was subjected
to the unfavorable evaluations and performance appraisal on account of
unsatisfactory and deficient job performance in the instances cited.
Accordingly, complainant's claim of reprisal discrimination is not
established.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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:
February 11, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________
Date
____________________________
Equal Employment Specialist
1The 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.
2The only evidence submitted by complainant in connection with this
condition was a pharmacy slip showing the possible side effects of an
anti-gout medication called Allupurinol, indicating that the medication
may cause drowsiness.