01a10433
03-13-2003
The Estate of Mark Mason, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency) Agency.
Mark Mason v. Department of Defense
01A10433
March 13, 2003
.
The Estate of Mark Mason,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency)
Agency.
Appeal No. 01A10433
Agency No. 98-CA-0754-E
Hearing No. 140-99-8107X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his formal complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence that he was discriminated against on the bases of
race (African-American) and disability (sickle cell anemia) when he was
terminated from employment on September 16, 1997.
BACKGROUND
The record reveals that complainant, a temporary Custodial Worker
at the agency's Defense Commissary facility in Camp Lejeune, North
Carolina, filed a formal EEO complaint in which he alleged what has
been identified as the issue presented. The complaint was accepted by
the agency for investigation. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). Prior to the hearing, complainant passed away. Thereafter, his
attorney requested a decision without a hearing. The AJ granted the
attorney's request. After thoroughly examining the evidence of record,
the AJ issued a finding of no discrimination.
Specifically, the AJ found that complainant failed to present evidence
that the agency's stated reason for the termination was a pretext for
discrimination. The AJ also found, in light of complainant's contention
that sickle cell anemia disproportionately affected African Americans,
that complainant failed to present the requisite statistical evidence
indicating that the termination at issue herein had a disparate impact on
African-Americans. Finally, the AJ found that complainant's impairment
could not be accommodated such that he could perform the essential
duties of his job, and requiring the agency to tolerate complainant's
excessive absences would constitute an undue hardship. In its final
decision regarding the matter, the agency adopted the AJ's findings.
It is from that decision complainant appeals.
On appeal, complainant's attorney, who is not the same attorney
that represented complainant at the hearing stage, argues that the AJ
should not have issued a decision without a hearing because the case is
replete with disputed issues of material fact. This argument will not
be addressed because complainant's previous attorney requested that the
AJ issue a decision without a hearing.
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII and
Rehabilitation Act case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Swanks
v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999) (applying McDonnell
Douglas to disability cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant 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 complainant has
established a prima facie case to whether s/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).
Here, we find that the agency has stated a legitimate, nondiscriminatory
reason for its action. Specifically, the agency stated that complainant
was terminated because of excessive absences.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant 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)).
As the AJ noted, complainant has presented no evidence that the agency's
stated reason was a pretext designed to mask discriminatory animus.
Disparate Impact
Generally, to establish a prima facie case of disparate impact,
complainant must show that an agency practice or policy, while neutral
on its face, disproportionately impacted members of the protected
classes through presentation of statistical evidence that demonstrates
a statistical disparity that is linked to the challenged practice or
policy. See, Obas v. Department of Justice, EEOC Appeal No. 01A04389
(May 16, 2002), Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994
(1988). Complainant must identify the specific practice challenged, show
statistical disparities, and show that the disparity is caused by the
challenged practice. Id. Statistical disparities must be "sufficiently
substantial such that they raise an inference of causation." Watson,
487 U.S. at 995. In this case, complainant contended that because
his absences were related to sickle cell anemia, an impairment that
disproportionately affects African-Americans, his termination had an
disparate impact on all people of his race. Complainant's contention,
however, is not sufficient to support an allegation of disparate impact.
Therefore, the AJ's rejection of complainant's disparate impact claim
was appropriate.
Disability Accommodation
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
he is an "individual with a disability." We shall assume, arguendo,
that complainant established that he is an individual with a disability
covered by the Rehabilitation Act.
Information in the evidentiary record indicates that during his six month
tenure agency, complainant used 151.50 hours of sick leave and 38 hours
of leave without pay. While complainant was absent, the agency could not
find anyone to perform his duties because the only other employees that
were present during complainant's tour of duty were cashiers, who made
less money than custodians, and therefore, they could not be required
to perform complainant's job. We note that the medical evidence in the
record does not indicate that complainant's erratic attendance was only
temporary or would have improved in the future. Therefore, it would
have posed an undue hardship for the agency to further accommodate
complainant's absences in his current position.
In addition to showing that he is an �individual with a disability,�
complainant must show that he is a �qualified� individual with a
disability, which is defined as a disabled person who, with or without
a reasonable accommodation, can perform the essential functions of the
position held or desired. Because we have determined that maintaining
complainant in his current position would have posed an undue hardship
on the agency, we note that the term "position" is not limited to
the position held by the employee, but also includes positions that
the employee could have held as a result of reassignment. Therefore,
in determining whether an employee is "qualified," an agency must look
beyond the position which the employee presently encumbers. Accordingly,
the agency should have considered reassignment in this case. We note that
because this case arose prior to June 20, 2002, the Commission will apply
29 C.F.R. � 1614.203(g), its prior regulation regarding reassignment.<1>
The complainant has an evidentiary burden in reassignment cases
to establish that it is more likely than not (preponderance of the
evidence) that there were vacancies during the relevant time period into
which complainant could have been reassigned. Clearly, complainant can
establish this by producing evidence of particular vacancies. However,
this is not the only way of meeting complainant's evidentiary burden.
In the alternative, complainant need only show that: (1) he or she was
qualified to perform a job or jobs which existed at the agency, and (2)
that there were trends or patterns of turnover in the relevant jobs
so as to make a vacancy likely during the time period. Upon review,
we find that complainant has submitted no information which adequately
satisfies his evidentiary burden.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts. Further we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes or that he was denied a reasonable accommodation.
Thus, the final agency decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
March 13, 2003
__________________
Date
1 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the Federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02),
to be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply
to all conduct on or after June 20, 2002, and emphasize, among
other things, a broader search for a vacancy. The ADA regulations
regarding reassignment can be found at 29 C.F.R. �� 1630.2(o) and
1630.9. Additional information can be found in the Appendix to the
ADA regulations and in the EEOC's Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act ( revised October 17, 2002) at Questions 25-30. These documents
are available on the EEOC's website at www.eeoc.gov.