Terry L. Mohney, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01975128 (E.E.O.C. Feb. 10, 2000)

01975128

02-10-2000

Terry L. Mohney, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Terry L. Mohney v. Department of the Navy

01975128

February 10, 2000

.

Terry L. Mohney,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01975128

Agency No. 9565923015

Hearing No. 140968021X

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination on the bases of sex (male), reprisal (prior EEO activity),

and physical disability (right knee condition), in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et

seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791,

et seq.<1> Complainant claims that he was discriminated against when

the agency terminated his employment on January 17, 1995. The appeal is

accepted in accordance with EEOC Order No. 960.001. For the reasons that

follow, the agency's decision is AFFIRMED.

The record reveals that during the relevant time complainant's

employment consisted of a limited, non-status, temporary appointment to

a WG-8 Power Support Equipment Repairer position at the agency's Naval

Aviation Depot in Cherry Point, North Carolina. During this appointment,

as well as during another temporary appointment immediately preceding

it, complainant had sustained seven on the job injuries, including

four right knee injuries. After each injury complainant was detailed

to a less physically demanding position until he recovered and was

able to resume performing the duties of the position for which he was

hired. While complainant was working in one of these lighter details

as a consequence of his fourth right knee injury, the Division Director

(DD) informed complainant that his temporary appointment was terminated

because it was apparent that he was physically incapable of performing

the duties for which he was hired.

Complainant filed a formal EEO complaint with the agency on March

3, 1995, alleging that the agency had discriminated against him as

referenced above. At the conclusion of the investigation, complainant

requested a hearing before an Equal Employment Opportunity Commission

(EEOC) Administrative Judge (AJ). The AJ issued a Recommended Decision

(RD) without a hearing, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of sex discrimination because he failed to demonstrate that

similarly situated employees not in his protected classes were treated

differently under similar circumstances. In fact, the AJ pointed out that

the comparative employees included a female who was also terminated from

her temporary position when she became physically incapable of performing

her duties.

The AJ also held that complainant did not establish a prima facie

case of reprisal because although the record showed that complainant

had previously engaged in the EEO process concerning a matter which was

informally resolved, and that DD was aware of the situation, the requisite

"time and manner" element had not been demonstrated. Specifically, the AJ

found that the record was devoid of any evidence to suggest a connection

or "nexus" between the prior activity and the alleged discrimination,

noting that DD had no involvement in the prior EEO situation.

Additionally, the AJ found that complainant failed to establish a prima

facie case of disability discrimination because he failed to show that

he was a "qualified person with a disability" within the meaning of

the Rehabilitation Act.<2> The AJ concluded that complainant's medical

evidence did not establish that his right knee condition substantially

limited a major life activity, or that he was regarded by as having such

a disability, or had a record of such a disability.

The AJ went on to observe that even if complainant had established a

prima facie case of disability discrimination, the agency articulated

a legitimate nondiscriminatory reason, namely that complainant was

terminated because he was physically unable to perform the duties of the

limited temporary position for which he was specifically hired. The AJ

further noted that the record was completely devoid of any evidence to

show that this reason was merely a pretext for discrimination.

The agency's FAD adopted the AJ's RD. Complainant makes no new contentions

on appeal, and the agency requests that we affirm the FAD.

Our review of the record shows that the complainant failed to produce

any evidence to support even the inference that DD's decision was the

result of discriminatory animus based on sex or reprisal.

Accordingly, we concur with the AJ's RD, and AFFIRM the FAD's finding

of no sex discrimination or reprisal.

With respect to the AJ's prima facie disability determination,

we note that the Rehabilitation Act only prohibits discrimination

against qualified individuals with disabilities. Thus, in order to

establish disability discrimination, complainant must first show that

he is a qualified individual with a disability. See Prewitt v. United

States Postal Service, 662 F.2d 292 (5th Cir. 1981). Pursuant to 29

C.F.R. �1630.2, an individual with a disability is one who (1) has an

impairment which substantially limits one or more major life activities,

(2) has a record of such an impairment, or (3) is regarded as having

such an impairment. Major life activities include caring for one's self,

performing manual tasks, walking, seeing, breathing, learning, and

working. 29 C.F.R. �1630.2(i). A qualified individual with a disability

is one who can perform the essential functions of the job with or without

an accommodation. Bradley v. U.S. Postal Service, EEOC Appeal No. 01962747

(October 22, 1998)

In support of his disability claim, complainant submitted outpatient

treatment notes from a Department of Veterans' Affairs medical facility

reflecting, in pertinent part, the treatment he received subsequent to

his on the job right knee injuries. In each instance it appears that

complainant's knee "popped out" when engaging in strenuous activity at

work. The last outpatient treatment note prior to his termination, dated

in October 1994, reveals that complainant complained that his right knee

"buckled" when pushing a hydraulic unit. Physical examination showed no

effusion, but pain on extension and midpoint tenderness. Complainant

was treated with medication and with instructions to elevate the knee

while at home. A follow-up appointment the next day showed no change in

symptoms, and there were no further treatment notes of record to show

the course of recovery. However, prior treatment for similar right knee

injuries consistently resulted in good recovery, with outpatient records

showing only some tenderness, but full range of motion. No difficulty with

ambulation was noted both before and after treatment. According to DD,

complainant was detailed to lighter duty during these recovery periods,

and then returned to his usual duties, which required arduous physical

activity, whereupon he would re-injury his knee. Outpatient treatment

notes confirm this scenario.

Based on this evidence, we find that the right knee condition does not

substantially limit a "major life activity" under the above definition,

because the outpatient treatment records show that complainant is able to

ambulate without difficulty even during active symptomatology, and that

the knee responds to treatment after re-injury, with only some residual

pain and tenderness. 29 C.F.R. �1630.2(i). Accordingly, we concur with

the AJ that complainant failed to show that his knee injury substantially

limited him in a "major life activity," so that he is not a "disabled

individual" entitled to the protection of the Rehabilitation Act.

Furthermore, we concur with the AJ's finding that even having

established a prima facie case of disability discrimination, the

record failed to reflect any discriminatory animus on the part of DD

toward complainant. DD stated, and the record confirms, that temporary

appointments are designed to accomplish specific activities within

a certain time period, and that DD had consistently terminated other

temporary employees when they became unable, for a variety of reasons,

to perform the duties of their temporary appointments. DD also provided

affidavit testimony that complainant was a good and hard worker and that

he would provide him with a good recommendation, which we find further

belies of finding of discriminatory animus.

Therefore, after a careful review, the Commission finds that the AJ

set forth the relevant facts and properly analyzed the case using the

appropriate regulations, policies and laws. Based on the evidence of

record, the Commission discerns no basis to disturb the AJ's finding of

no discrimination. Accordingly, it is the decision of the Commission to

AFFIRM the agency's FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 10, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 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. 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 EEOC's

website: WWW.EEOC.GOV.