Kenneth W. Duncan, Complainant,v.William E. Kennard, Chairman, Federal Communications Commission, Agency.

Equal Employment Opportunity CommissionDec 6, 2000
01973262 (E.E.O.C. Dec. 6, 2000)

01973262

12-06-2000

Kenneth W. Duncan, Complainant, v. William E. Kennard, Chairman, Federal Communications Commission, Agency.


Kenneth W. Duncan v. Federal Communications Commission

01973262

December 6, 2000

.

Kenneth W. Duncan,

Complainant,

v.

William E. Kennard,

Chairman,

Federal Communications Commission,

Agency.

Appeal No. 01973262

Agency No. FCC932

Hearing No. 100-96-7088X

DECISION

Complainant filed a timely appeal from the agency's final decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of disability (back disorder), in violation of the Rehabilitation

Act of 1973,<1> as amended, 29 U.S.C. � 791, et seq. The appeal is

accepted in accordance with the provisions of 29 C.F.R. � 1614.405.<2>

For the reasons that follow, the Commission AFFIRMS the FAD.

Complainant, a Computer Specialist, GS-12, at the agency's Headquarters

in Washington, D.C., contends that he first injured his back on

August 10, 1992, that he informed his supervisor (S) of this injury

and that, as a result, he was unable to lift more than twelve pounds.

Complainant claims S discriminated against him when, on August 18,

1992, she deliberately assigned him lifting duties incompatible with

his back disorder, resulting in an on-the-job injury which totally

incapacitated him. However, S contended that complainant did not

inform her of any injury or restriction until August 18, 1992, when he

stated that he had a �physical profile� which prevented him from lifting

more than twelve pounds and would obtain a copy of the profile for her.

Later that day, complainant received an assignment to install a printer in

another building. Complainant installed the printer on August 19, 1992.

Generally, such an installation only requires making cable connections.

Complainant maintained that he had to move the printer (which weighed

some 25 pounds) around on the desk to make the necessary connections.

He did not seek any assistance from persons at the location. At the end

of the day, complainant went to see the agency nurse and subsequently

filed Office of Workers' Compensation Program forms which cited only the

injury which allegedly occurred on August 10, 1992. Complainant never

returned to work after August 19, 1992.

Thereafter, complainant sought EEO counseling and filed a formal complaint

which alleged that S discriminated against him when, on August 18, 1992,

she gave him a job assignment despite his incapacity due to a work-related

injury sustained on August 10, 1992, and continued to assign him manual

labor duties after he informed her of the on-the-job injury.<3> At the

conclusion of the investigation, complainant requested a hearing before

an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued

a Recommended Decision (RD), finding no discrimination.<4>

The AJ concluded that complainant could not establish a prima facie case

of disability discrimination under a disparate treatment analysis because

he failed to demonstrate that similarly situated employees not in his

protected class were treated differently under similar circumstances

or otherwise to make a plausible showing of a nexus between his alleged

disability and the disputed conduct. See Prewitt v. United States Postal

Service, 662 F.2d 292 (5th Cir. 1981). The AJ also found that even if

complainant had established a prima facie case, the agency articulated a

legitimate nondiscriminatory reason for its actions in that complainant

had not informed S about any lifting restriction prior to August 18,

1992, the printer installation assignment was consistent with any

claimed restriction, complainant had been told to request assistance if

necessary during the installation and did not do so, and there was no

medical evidence that performing the printer installation in fact injured

complainant. In making these findings, the AJ noted that complainant

contended that S was aware all along of his back disability and inability

to lift objects weighing more than twelve pounds, but specifically found

that complainant's testimony on this point was not credible.

Next, the AJ determined that complainant also failed to establish a prima

facie case of disability discrimination under the theory that the agency

failed to reasonably accommodate his disability. The AJ first found

that complainant was not an individual with a disability as defined

by the Rehabilitation Act, holding that the medical evidence did not

reflect that his impairment substantially limited a major life activity.

Moreover, as noted above, the AJ found that S was not aware of the claimed

back disability because complainant failed to inform her about it prior

to August 18, 1992, and also because he consistently was observed to

engage in unrestricted lifting up until that time, such that S could

not have reasonably known of this claimed back disability. Finally,

regarding the assignment to install the printer on August 19, 1992,

the AJ found that complainant was not denied reasonable accommodation

inasmuch as S had instructed him to obtain any necessary assistance.

The agency's FAD adopted the AJ's RD. On appeal, complainant challenges

the AJ's findings and questions his ethical conduct when he did not recuse

himself from the case after learning that, due to his acquaintance with

the wife of the agency's EEO Director, he had met the EEO Director on

several social occasions. The agency requests that we affirm its FAD.

Initially, we are not persuaded either that the AJ did not �adequately

justify� his refusal to recuse himself or that the AJ abused his

discretion in denying complainant's request that he recuse himself based

on his acquaintance with the agency's EEO Director. See Wright v. United

States Postal Service, EEOC Appeal No. 01955315 (September 25, 1996).

We are also not persuaded that various rulings made by the AJ during

the course of the hearing constituted error. See n. 4, supra.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that even assuming arguendo

that complainant was an individual with a disability, he failed to present

evidence that S's actions were motivated by discriminatory animus toward

his claimed back disability, that S knew of his disability before August

18, 1992, or that the assignment to install the printer constituted a

failure to reasonably accommodate his claimed disability. Accordingly,

we discern no basis to disturb the AJ's findings or conclusions.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

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:

______________________________

Carlton M. Hadden

Director, Office of Federal Operations

December 6, 2000

_______________

Date

______________

Date

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.

2On 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, where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at www.eeoc.gov.

3 This matter has been the subject of prior Commission decisions.

In Duncan v. Federal Communications Commission, EEOC Appeal No. 01932300

(August 18, 1993), the Commission affirmed the agency's dismissal

of certain other allegations contained in the instant complaint.

In Duncan v. Federal Communications Commission, EEOC Appeal No. 01942711

(February 10, 1995), the Commission reversed the agency's dismissal of

the allegation that S had assigned complainant manual labor duties after

he had informed her of the alleged on-the job injury.

4 In the course of the hearing, the AJ's made various rulings, including

the exclusion of several witnesses, premised on the finding that

complainant was attempting to raise matters which had been dismissed

and which were not relevant to the instant claims. After a careful

review of the record, the Commission is not persuaded by complainant's

contentions that the AJ's rulings constituted error.