Robert A. Pulcini, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01990835 (E.E.O.C. Jul. 27, 2000)

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.