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.