03990071
08-31-2000
Petitioner, )
Kenneth Vanderford v. Department of the Navy
03990071
August 31, 2000
Kenneth Vanderford )
Petitioner, )
) Appeal No. 03990071
v. ) MSPB No. SF-0752-98-0506-I-1
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
On March 15, 1999, Kenneth Vanderford (petitioner) timely filed a
petition with the Equal Employment Opportunity Commission for review
of the final decision of the Merit Systems Protection Board concerning
an allegation of discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Board found that the Department of the Navy (agency) had not engaged
in discrimination as alleged by petitioner. For the following reasons,
the Commission concurs with the Board's decision.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against him
on the bases of race (Black), sex (male), disability (psychological
acute stress disorder), and reprisal (prior EEO activity) constitutes
a correct interpretation of the applicable laws, rules, regulations,
and policy directives, and is supported by the record as a whole.
BACKGROUND
Petitioner filed an appeal with an MSPB administrative judge alleging,
in pertinent part, that he was the victim of unlawful employment
discrimination when he was removed from his position with the agency.
The administrative judge issued a decision, which became final on February
11, 1999, finding no discrimination. It is from that decision that the
petitioner appeals.
Petitioner, employed by the agency as a Medical Clerk (GS-4), was removed
from the agency, effective May 13, 1998. Petitioner contended that his
removal was based on race, sex, and disability discrimination, as well
as retaliation for prior EEO engagement. The agency, however, contended
that the removal was based on excessive unauthorized absences.
The evidence of record reveals that petitioner was charged with being
absent without approved leave (AWOL) from March 23, 1998 to April 2, 1998,
a total of nine work days.<1> On March 19, 1998, petitioner approached
his supervisor and asked him to sign a request for advanced sick leave for
the period of March 23 though March 26. The supervisor indicated that
he would consider the request as time permitted. Petitioner then asked
if the request was being denied at which point the supervisor iterated
that the request would be considered in a timely manner. At the end of
that exchange, petitioner departed the area and took the leave request
with him.
The next morning, on March 20, 1998, the supervisor found the leave
request in his mailbox. The request was accompanied by a medical note,
which indicated that petitioner was seen for psychotherapy on March
17, 1998 and recommended that �[b]ased on . . . an assessment of his
psychological functioning, . . . [petitioner] use four days of disability
time from [March 23 through March 26.]� The note also indicated that
petitioner would be reevaluated on the 26th of March to determine if
additional time off was necessary. On March 27th, petitioner, relying
on medical advice, submitted an addendum to his original leave request
seeking to be absent from work until April 2, 1998.
The same day he received petitioner's request and medical note, the
supervisor gave petitioner a copy of the agency's policy<2> regarding
advanced sick leave and told petitioner that he had not submitted the
request for advanced sick leave in a timely manner, and therefore,
his request would be rejected. Petitioner retrieved the request from
his supervisor and indicated that he would discuss the matter with his
supervisor's superiors. Thereafter, petitioner was absent from work
from March 23 to April 2, 1998. There is no evidence that the leave
request was ever approved.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board regarding
the allegation of discrimination on the bases of race, sex, disability,
and reprisal constitutes a corrective interpretation of any applicable
law, rule, regulation or policy directive and is supported by evidence
in the record as a whole. 29 C.F.R. �1614.305(c).
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973). For petitioner to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Disability Discrimination
In order to establish a prima facie case of disability discrimination,
petitioner must establish that he is an �individual with a disability�
within the meaning of the Rehabilitation Act. An �individual with
disability� is 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, i.e., caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. See, 29 C.F.R. � 1630.2(j).<3>
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 a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
The medical note, which addressed petitioner's psychological disorder,
submitted with the leave request does not specify to what degree that
impairment affected petitioner's ability to engage in major life
activities. The evidentiary record also contains clinical reports
regarding petitioner's psychological disorder. But that information also
does not specify to what degree petitioner's major life activities were
impaired. Therefore, we find insufficient evidence from which to conclude
that petitioner's psychological disorder substantially impaired one or
more of his major life activities so as to render him an �individual
with a disability� within the meaning of the Rehabilitation Act.
Additionally, there is no evidence indicating that the agency regarded
him as disabled.
In the alternative, petitioner argued that he has a record of a
disability. According to petitioner's medical records, in 1975 he
was diagnosed with hyperkeratosis penetrans of the palmer service of
both hands. These records, however, do not indicate whether or not
this hand impairment was permanent in nature; nor do they specify the
degree to which the impairment, if it still exists, substantially limits
petitioner's ability to engage in or perform major life activities
(in this case, manual tasks). Furthermore, there is no evidence which
indicates that the agency was aware of the hand condition. As such,
we discern no basis for finding that petitioner has established a claim
of disability discrimination.
Race, Sex, and Reprisal
Petitioner can establish a prima facie case of discrimination based
on race and sex by showing that he: (1) is a member of the protected
groups; (2) met the employer's legitimate performance expectations;
(3) was actually discharged; and (4) was accorded treatment different
from that given to a person(s) otherwise similarly situated who is not a
member of his protected groups. See, St. Mary's Honor Center v. Hicks,
509 U.S. at 506. We note, however, that comparative evidence is only one
way of establishing a prima facie case, and that there are other methods
of making such a showing. See O'Conner v. Consolidated Coin Caters Corp.,
519 U.S. 1040 (1996); Enforcement Guidance on O'Conner v. Consolidated
Coin Caters Corp., EEOC Notice 915.002 (September 18, 1996).
In order to establish a prima facie case of discrimination for a claim
of reprisal, petitioner must show the existence of four elements:
(1) that he engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3)
that he was disadvantaged by an action of the agency contemporaneous
with or subsequent to such participation; and (4) that there was
a causal connection between the protected activity and the adverse
employment action. See, Hochstadt v. Worcester Found. for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976), see also Mitchell v. Baldridge, 759 F.2d 80, 86
(D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc., 683
F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982)
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
the agency stated that petitioner was terminated for missing a total of
nine work days without prior approval.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory event, petitioner now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Petitioner can do this by
showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
We find that petitioner has failed to meet this burden. In attempting
to prove pretext, he submitted scores of citations and quotations from
various employment discrimination cases. Those cases in the abstract,
however, do nothing to prove that the discharge was discriminatory.
For that reason, we find that petitioner failed to show that the reason
articulated by the agency constitute an effort to mask discriminatory
animus.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the Board's final
decision of no discrimination. The Commission finds that the Board's
decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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:
August 31, 2000
______________ _________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 petitioner, petitioner's representative
(if applicable), the MSPB and the agency on:
________________ _________________________________
Date Equal Employment Assistant
1Information contained in the file indicates that, beginning on November
10, 1997, petitioner served a 14-day suspension for a prior instance of
excessive unauthorized absences.
2The agency's leave policy for civilian employees required that those
requesting advanced leave must provide adequate time, at least a week,
for routing such requests. The policy also stated that, regardless of the
reason for the request, employees are not entitled to advanced leave of
any type, and that such leave will be restricted to those employees who
have exhausted their own leave due to extended illness or disability.
3The Rehabilitation Act was amended in 1992 to apply the standards of 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 the
EEOC's website: www.eeoc.gov.