01975525
05-31-2000
Marion E. Mew, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Marion E. Mew v. Department of the Army
01975525
May 31, 2000
Marion E. Mew, )
Complainant, )
) Appeal No. 01975525
v. ) Agency No. AOEVFO9503F0050
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On July 1, 1997, Marion E. Mew (hereinafter referred to as complainant)
initiated an appeal to the Equal Employment Opportunity Commission
(Commission) from a final decision of the agency concerning his complaint
of discrimination in violation of �501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq.<1> The final agency decision
was received by complainant on June 4, 1997. Accordingly, the appeal
is timely, and is accepted by this Commission in accordance with 64
Fed.Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that he was discriminated against on the basis of his
disability (cervical spondylosis, spinal stenosis, and arthritis) when
he was terminated from his temporary Training Technician, GS-1702-6,
position effective February 4, 1994.
Complainant filed a formal EEO complaint in March 1995, raising the
above-referenced allegation of discrimination. The agency accepted
complainant's complaint for processing, and conducted an investigation.
Complainant initially requested an administrative hearing; however, the
Administrative Judge remanded the case to the agency in September 1996,
after complainant failed to proceed with the matter. The agency then
issued a final decision dated May 27, 1997, finding that complainant
had not been subjected to discrimination. It is from this decision that
complainant now appeals.
A review of the record reveals that complainant was initially hired as a
temporary, part-time Training Technician in February 1992. Complainant
was converted to a temporary, full-time position after one year.
Complainant acknowledged that management made three attempts to convert
him to permanent status beginning in May 1993, and the record contains
documentation evidencing those requests. Nevertheless, the attempts
were unsuccessful, and complainant was terminated in February 1995.
Complainant asserted that he was continually denied the opportunity
to be converted to a permanent position because of his disability.<2>
Complainant stated that he believed the former Director and the Deputy
Director were aware of his condition since his personnel forms noted
that he had a compensable veterans preference. Complainant noted that
he was able to perform the duties of his position without accommodation,
which he never requested. Complainant also stated that his condition did
not affect his performance. Complainant opined that money was available
for his position, and that other individuals were promoted and hired
into newly created positions.
The former Director had retired at the time of the investigation.
Nevertheless, in an interview with the EEO Counselor, the former
Director stated that he was not aware of complainant's disability, and
that complainant was terminated because the department was advised to
reduce its work year ceiling by one individual. The former Director
also noted that the program under which complainant was working was
eliminated in February 1995.
The Deputy Director denied having any knowledge of complainant's
disability, stating that complainant never requested any accommodation.
He described complainant's performance as being excellent. The Deputy
Director also stated that complainant was terminated after the Civilian
Personnel Office advised the department to reduce its work year ceiling.
The Deputy Director noted that it terminated complainant, who was the only
temporary employee, rather than eliminate a permanent position and conduct
a reduction in force (RIF). The Deputy Director stated that complainant
was not converted to a permanent position earlier because management
wanted to maintain flexibility in meeting its manpower requirements,
and because the department received notice of the possible elimination
of the program in which complainant was working.
Complainant's complaint presents the issue of whether the agency
subjected him to disparate treatment on the basis of his disability.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an
analytical framework for proving employment discrimination in cases in
which disparate treatment is alleged. First, complainant must establish
a prima facie case by presenting enough evidence to raise an inference
of discrimination. McDonnell Douglas, supra, at 802. The agency
may rebut complainant's prima facie case by articulating legitimate,
nondiscriminatory reasons for its action, and if the agency does so,
complainant must show, by a preponderance of the evidence, that the
agency's reasons are a pretext for discrimination. Id.
Assuming, arguendo, that complainant had established that he was an
individual with a disability, see 29 C.F.R. �1630.2(g), the record does
not support a finding of discrimination in this case. The agency stated
that complainant was terminated because the department was instructed to
reduce its work year ceiling by one individual. Further, the agency noted
that if it had not terminated complainant, the only temporary employee,
it would have had to eliminate a permanent position and conduct a RIF.
Complainant opined that management was aware of his disability because
his personnel forms reflected his status as a compensable veteran.
The former Director and the Deputy Director, however, denied having
any knowledge of complainant's disability, and the Commission finds the
designation on complainant's personnel forms insufficient for imputing
such knowledge under the Rehabilitation Act. Complainant has presented no
evidence which would cause the Commission to find that management acted
with discriminatory animus in effecting his termination. Therefore,
the Commission finds that complainant failed to prove, by a preponderance
of the evidence, that he was subjected to disability discrimination with
regard to that action.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on disability.
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:
05-31-00
DATE Carlton M. Hadden
Acting Director
Office of Federal Operations
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:
_________________________ __________________________
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 record includes a February 1995 letter from an orthopedic doctor,
stating that complainant was being treated for cervical spondylosis,
spinal stenosis, and arthritis, as well as a letter from the Department
of Veterans Affairs identifying complainant as a 50% compensable disabled
veteran.