01990835
07-27-2000
Robert A. Pulcini, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Robert A. Pulcini v. Social Security Administration
01990835
July 27, 2000
Robert A. Pulcini, )
Complainant, )
) Appeal No. 01990835
v. ) Agency No. 97-0438-SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment 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.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405).<2> Complainant alleged that he was discriminated
against on the bases of mental disability (stress) and in reprisal for
prior protected activity when he was not selected for the position
of Chief Administrative Law Judge at an agency facility in Houston,
Texas in November, 1996. Believing the agency discriminated against
him, complainant sought EEO counseling and subsequently filed a formal
complaint on June 17, 1997. At the conclusion of the investigation,
when complainant failed to timely request a hearing before an EEOC
Administrative Judge, the agency issued a final decision finding no
discrimination. It is from this decision complainant, without comment,
now appeals.<3>
In its FAD, the agency found that complainant failed to establish
a prima facie case of disability discrimination because the record
contained no medical evidence of his condition and because there was
no evidence that the selecting officials were aware of his condition.
The agency also found that complainant failed to establish a prima facie
case of retaliation because the selecting officials denied knowledge of
his prior protected activity.
1. Discrimination
As a threshold matter, complainant must establish that he is an
individual with disability within the meaning of the Rehabilitation Act.
An "individual with a disability" is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). The Supreme Court has held that the determination
of whether a person is an "individual with a disability" must be based
on his condition at the time of the alleged discrimination. The positive
and negative effects of mitigating measures used by the individual, such
as medication or an assistive device, must be considered when deciding
if he has an impairment that substantially limits a major life activity.
Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United
Parcel Service, Inc., 527 U.S. 516 (1999).
In 1994, when he worked at an agency facility in New Haven, Connecticut,
complainant took approximately six weeks off due to health problems and
subsequently filed an OWCP claim concerning "stress in the workplace"
which was adjudicated in his favor. At the time of the non-selection
in 1996, complainant worked at an agency facility in Charlottesville,
Virginia. There is no evidence that at that time he had any kind of
impairment which substantially limited any of his major life activities.
Moreover, there is no evidence in the record to support a finding
that he was either regarded as or had a record of such an impairment.
Accordingly, the Commission agrees with the agency that complainant
failed to establish a prima facie case of disability discrimination.
2. Retaliation
Based on the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), in order to establish a prima facie case of retaliation,
complainant must show that: (1) he engaged in prior protected activity
of which relevant management officials were aware; (2) he was subject to
an adverse action; and (3) there is a causal link between the protected
activity and adverse action. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). The causal connection may be shown by evidence
that the adverse action followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred.
See Devereux v. United States Postal Service, EEOC Request No. 05960869
(April 24, 1997).
In 1994, before he went out on sick leave, complainant filed a
whistle-blower complaint with the Office of Special Counsel charging his
superiors with incompetence and misfeasance in failing to deal with a
personnel problem at the New Haven, Connecticut facility. Subsequently,
allegedly because of health reasons, complainant was asked to resign.
In his affidavit, complainant states that he does not believe his
health was the real reason he was asked to resign so he filed an EEO
complaint<4> and that he believes that he was not selected for the Chief
ALJ position in Houston in part because of this EEO activity. Assuming,
without finding, that the selecting officials in the Houston district
were aware of complainant's prior EEO activity, the Commission finds
that complainant failed to establish a causal link between it and his
non selection. In reaching this conclusion, we note that complainant's
prior activity occurred two years earlier. Moreover, while the evidence
in the record reflects that complainant's controversial involvement in
the personnel problems at the New Haven office tainted his reputation
and inclined the selecting officials to look less favorably upon his
application, there is no evidence of a causal link between complainant's
prior filing of the EEO complainant and his non selection. Accordingly,
we concur in the agency's conclusion that complainant failed to establish
a prima facie case of retaliation.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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:
July 27, 2000
______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 The 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. See 29 C.F.R. Part 1630.
These regulations can be found on EEOC's website at www.eeoc.gov.
2 On 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.
3 The Vice Chairman has recused himself from participation in this
decision.
4 Although we are unable to ascertain whether complainant alleged a
basis protected by any of the statutes enforced by the Commission in the
prior complaint, there is no dispute between the parties that complainant
participated in the EEO process. Accordingly, he has alleged a protected
basis, retaliation. 29 C.F.R. � 1614.101(a). Complainant states that
both the whistle-blower complaint and the EEO complaint were "resolved"
by an oral agreement permitting him to transfer to the Charlottesville,
Virginia office; assuring him that he would no longer be blamed for the
problems in the New Haven office; and that the New Haven office problems
would be forgotten when he applied for future positions. However,
complainant acknowledges that this agreement was never reduced to a
written document executed by the parties (see 29 C.F.R. � 1614.603)
and does not contend that it had the force of law.