01981651
02-06-2002
Louis L. Motley, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Louis L. Motley v. Department of the Air Force
01981651
February 6, 2002
.
Louis L. Motley,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01981651
Agency Nos. AL900980185/RXOF97015
DECISION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision (FAD) of
the agency concerning his allegation that the agency violated � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted by the Commission in accordance with 29 C.F.R. �
1614.405.
The issue presented in this appeal is whether complainant proved, by a
preponderance of the evidence, that he was discriminated against because
of his disability (back injury) when, on August 14, 1996, he received
an overall appraisal rating of Fully Successful with ratings of five
on each of his nine appraisal factors for the period of July 1, 1995,
through June 30, 1996.
The complainant was employed as an Aircraft Hydraulic Systems
Mechanic, WG-8268-10, assigned to the C-141 System Program Office at
the Warner Robins Air Logistics Center, Robins Air Force Base, Georgia.
In 1992, the complainant suffered an on-the-job injury to his back which
prevented him from performing the full range of duties of his position.
According to the record, complainant has a mild central disc bulge
that produces minimal pressure on the sheath of his spinal cord.
As a result, complainant cannot lift or carry loads of 45 pounds or
more and cannot climb using his arms and legs. Because he cannot work
using ladders or scaffolding, on September 13, 1993, he was determined
to be medically disqualified from his position. Subsequently, he was
assigned to work in the Sealant Shop, where he performed various lower
grade level duties (WG-03 through WG-07) for an extended period of time.
Complainant's first-level supervisor was A-1, Aircraft Overhaul Foreman.
A-1 was complainant's rating official. A-2, Deputy Chief, Production
Support Branch, was the second-level supervisor and reviewing official.
In September 1996, A-3 became complainant's second-level supervisor.
According to the record, a performance appraisal consists of three
components: the rating of an employees' accomplishments on each of
the performance elements (PEs) in their performance plan, an overall
performance rating, and a rating on nine different appraisal factors.
Complainant's performance plan lists seven PEs, of which five are
classified as critical. The appraisal factors represent job-related
behaviors, i.e., productivity, effort, communication, skill in work,
problem solving, etc. The factors are rated based on a scale from one
to nine, with one being low and nine being high. A rating of five means
that the recipient is Fully Successful.
On July 25, 1996, management rated the complainant's performance
for the period of July 1, 1995, through June 30, 1996. His overall
rating was Fully Successful. His total appraisal factor rating was 45.
He also received a rating of �Met� on all of his PEs. The following
notation appears in the Narrative Section of his appraisal: �This is
a presumptive rating of Fully Successful, employee was on limited duty
the entire rating period.�
A-1 testified that he provided A-2 with a list of proposed performance
ratings for each person that he supervised. His proposed rating for
complainant was Superior with a maximum appraisal factor score of 81.
A-2 told him, however, to change the rating to Fully Successful with an
appraisal factor score of 45 because complainant was disqualified from
doing the job to which he was officially assigned.<1> A-1 testified
that, in his opinion, complainant earned the rating that he proposed
for his work in the Sealant Shop.
A-2 and A-3 testified that there was a long standing policy at the
base to give presumptive performance appraisals of Fully Successful
to individuals who were disqualified or on limited duty for an entire
rating period. This policy was based on an agency regulation that reads:
�[g]ive an assumed fully successful rating to employees on workers'
compensation, leave without pay, or extended sick leave who have not
worked at least 90 calendar days during the current rating cycle.�
(ROI at 136). Management's interpretation of the regulation was that it
also applied to employees in complainant's situation, i.e., disqualified
from their positions and on limited duty for an entire rating period.
Because complainant had not performed the duties of his Hydraulic Systems
Mechanic position during the entire rating cycle, A-2 and A-3 felt that
the presumptive rating was justified.
A-2 testified that he did instruct A-1 to give complainant a Fully
Successful rating. He indicated, however, that the appraisal factor score
could have fallen anywhere within the range of 45-62. According to A-2,
presumptive ratings were given so that employees who were disqualified
from their official positions or on limited duty would not receive an
unfair advantage over those employees who were still performing the duties
of the position for which they were hired. A-2 also maintained that
giving a disqualified employee a high performance rating would put that
employee in the same competitive category as a non-disqualified employee,
which would have implications for promotions and reductions-in-force.
According to A-2, the policy has been applied consistently for the
past two rating cycles in which he has been the Deputy Branch Chief.
He added that there have been times, however, when a performance rating
had to be raised in order to settle a complaint.
A-3 indicated that giving presumptive ratings in such situations had
been practiced for many years. Although he was not aware how the policy
developed, he thought it was practiced �across the board� for all limited
duty employees. A-3 stated that �my belief is that within the range of
45-62, people in limited duty should be given the presumptive rating that
represents their work, not grouped at the same number.� A-3 indicated
that people have been promoted in the past with appraisal factor ratings
of 62. Finally, A-3 testified that if complainant had been officially
assigned to a lower graded position in the Sealant Shop, he probably
would have received a higher rating.
Complainant filed a formal complaint in January 1997. Following an
investigation, he was provided a copy of the investigative file and
notified of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a final decision without a hearing on
September 8, 1997. The agency issued a final decision that found that
complainant had not been discriminated against. The agency found that
a determination that complainant was substantially limited in the major
life activity of working was unsupported by the evidence. The agency
also found that management provided legitimate nondiscriminatory reasons
for its action and that complainant failed to establish pretext.
To establish a prima facie case of disability discrimination under
either a disparate treatment and/or a failure to accommodate theory,
the complainant must demonstrate that: (1) he is an "individual with
a disability"; (2) he is "qualified" for the position held or desired;
(3) he was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination and/or denied a
reasonable accommodation. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th
Cir. 2001). EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual
with a disability as one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities,
2) has a record of such impairment, or 3) is regarded as having such an
impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i) defines"major
life activities" as including the functions of caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.<2>
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform the major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id. After careful review of the record, the Commission
finds that complainant failed to show that he is an individual with a
disability within the meaning of the regulations. As previously noted,
the only limitations that the record sets forth are that complainant
cannot lift or carry loads of 45 pounds or more and cannot climb using
his arms and legs. Therefore, based on the evidence before us, we find
that complainant has presented insufficient evidence to show that he
has an impairment that substantially limits one or more of his major
life activities.
With respect to the major life activity of working, we specifically note
that an individual is substantially limited in working if the evidence
shows that the impairment significantly restricts the individual's
ability to perform either a class of jobs or a broad range of jobs
in various classes as compared to the average person with comparable
training, skills and abilities. Muskopf v. United States Postal Service,
EEOC Appeal No. 01975667 (February 25, 2000). Although complainant's
restrictions were sufficient to medically disqualify him from his
position, the inability to perform a single, particular job does not
constitute a substantial limitation on the major life activity of working.
See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and complainant
has presented no evidence from which it can be determined what class or
broad range of jobs he is unable to perform.
Complainant also failed to show that he has a record of a disability
that substantially limited one or more of his major life activities.
A person has a record of a disability, pursuant to 29 C.F.R. � 1630.2(k),
when they have a history of, or have been misclassified as having,
a mental or physical impairment that substantially limits one or more
major life activities. Thus, evidence that a person has been diagnosed as
having an impairment does not establish that the person has a record of
a disability. Finally, we find no persuasive evidence that complainant
was regarded as having an impairment that substantially limited one or
more of his major life activities.
We caution the agency, however, that application of this policy to
individuals with disabilities who are receiving reasonable accommodations
(e.g., reassignments) may violate the Rehabilitation Act. An employer
may not penalize an employee for receiving a reasonable accommodation.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act, No. 915.002, Question 19
(March 1, 1999). In view of this, we recommend that the agency review
its policy to ensure its compliance with the above guidance.
After a review of the record in its entirety, including consideration
of all matters submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision.
We find no evidence that would support a finding that complainant,
at the time he received the performance appraisal at issue, had, had
a record of, or was regarded as having a physical or mental impairment
which substantially limited one or more of his major life activities.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
February 6, 2002
______________________________
Date
______________________________
1According to A-1, A-2 directed him to also lower the overall ratings
and appraisal factor scores of four disqualified employees, two limited
duty employees, and three employees who were neither on limited duty
or disqualified.
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.