James R. Holtgrewe, Complainant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation,) Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01970011 (E.E.O.C. Feb. 11, 2000)

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.