Jonathan P. Flowers, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionJul 14, 2000
01970190 (E.E.O.C. Jul. 14, 2000)

01970190

07-14-2000

Jonathan P. Flowers, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Jonathan P. Flowers v. Department of Defense

01970190

July 14, 2000

Jonathan P. Flowers, )

Complainant, )

)

v. ) Appeal No. 01970190

) Agency No. XL96010

William S. Cohen, )

Secretary, )

Department of Defense, )

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 Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. �621 et seq. The appeal is accepted by the Commission

in accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).<1>

ISSUE PRESENTED

The issue presented is whether complainant has established by a

preponderance of the evidence that the agency discriminated against him on

the bases of physical disability (perceived diabetes) and age (54): (1)

with regard to the termination of his overseas deployment to a militarized

zone, in that on December 19, 1995, he was required to seek treatment for

sores on his legs; on December 21, 1995, he was required to see a medic

and a doctor; and on December 22, 1995, he was informed of the decision

to end his temporary deployment to a militarized zone in Bosnia and of

an appointment that was being made for him at Ramstein Air Force Base

Clinic; and (2) in that the foregoing conduct constituted harassment.

BACKGROUND

In a complaint dated January 17, 1995, complainant, then a Property

Administrator, GS-1103-11, with the agency's Defense Logistics Agency,

alleged that the agency discriminated against him as set forth in the

above-entitled statement, �Issue 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). Complainant requested an immediate FAD. On September

11, 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).

The Commission notes that, with regard to complainant's claim of age

discrimination, complainant has submitted no evidence whatsoever from

which the Commission might infer that age discrimination had occurred.

Complainant has not identified any person outside of his protected age

group or substantially younger than complainant whom he alleges received

preferential treatment, nor has complainant adduced any evidence of

age-discriminatory animus on the part of any agency official or employee

involved in the events at issue in his complaint. Accordingly, the

Commission will confine the remainder of its analysis to complainant's

claim of disability discrimination.

In order to establish a prima facie case of disability discrimination,

complainant must prove, by a preponderance of the evidence, that he was

treated unfavorably on account of his membership in the 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).

The Rehabilitation Act's implementing regulations define �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, which include, but are not

limited to, self-care, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. 29 C.F.R. ��1630.2(h),

(i), (j).<2> The regulations define 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).

The agency contests complainant's coverage under the Rehabilitation

Act, arguing that complainant is not an �individual with disability.�

The Commission finds that, in fact, complainant has not established

that he is an �individual with disability� within the meaning of the

Rehabilitation Act. Complainant alleges that the agency perceived him

as being disabled by virtue of having diabetes.<3> It does appear from

the record that the agency perceived complainant as having diabetes.

However, complainant has identified neither any major life activity in

which the agency believes him to be substantially impaired, nor any range

or class of jobs from which the agency believes him to be excluded.

See, e.g., Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).

The record reflects that the total extent of complainant's limitation,

as far as the agency was concerned, was that complainant was not a

suitable candidate for temporary deployment to a militarized zone in

Bosnia. There is simply no evidence to support a finding that the agency

regarded complainant as substantially impaired in any major life activity.

See id.; Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).

Accordingly, complainant cannot establish that he is an �individual with

disability� within the meaning of the Act, and therefore is not entitled

to the Act's protection.

An employer who creates or tolerates a work environment which is

permeated with "discriminatory intimidation, ridicule, and insult" that is

"sufficiently severe or pervasive to alter the conditions of the victim's

employment" violates Federal anti-discrimination laws. See, e.g., Harris

v. Forklift Systems, Inc., 510 U.S. 17 (1993) (harassment in violation

of Title VII). In this case, given that the Commission has found that

complainant is not entitled to protection under the Rehabilitation

Act and that he has not submitted evidence sufficient even to raise an

inference of age discrimination, complainant cannot establish that the

agency's actions constituted discriminatory harassment.

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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 14, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

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 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.

2The 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.

3The record contains conflicting information whether complainant in fact

has any type of identifiable medical condition. Complainant maintains,

however, that he has neither diabetes nor any other type of blood sugar

condition.