Theodore H. Stethem, Complainant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01973209 (E.E.O.C. Jan. 21, 2000)

01973209

01-21-2000

Theodore H. Stethem, Complainant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


Theodore H. Stethem v. Department of the Navy

01973209

January 21, 2000

Theodore H. Stethem, )

Complainant, )

) Appeal No. 01973209

v. ) Agency No. 9500253008

)

John H. Dalton, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Theodore H. Stethem (complainant) timely initiated an appeal of a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination on the basis of physical disability (right leg amputated

above knee; hyperthyroid disease), in violation of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791, et seg.<1> The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the agency's decision is AFFIRMED.

ISSUE

The issue on appeal is whether complainant has proven by a preponderance

of the evidence that he was subjected to unlawful employment

discrimination on the above cited basis when he was passed over for

promotion while less senior personnel were promoted.

BACKGROUND

The record reveals that during the relevant time, complainant worked

as an Electronics Engineer, GS-855-11, at the Naval Undersea Warfare

Center Division (NUWC), Tracking Pingers Branch, in Keyport, Washington.

On April 20, 1995, another engineer in complainant's branch received

a promotion based on accretion of duties. Believing he was a victim

of discrimination, complainant sought EEO counseling and, subsequently,

filed a complaint on June 1, 1995. Therein, he alleged that the selectee

(S1: no disabilities) had less time-in-grade and less direct technical

experience than he and that S1 had not gained any additional duties

through accretion. Complainant alleged that he should have received this

promotion and that the agency's perception that his physical disability

made him less capable and "less of a person" caused his nonselection, as

well as other unfair treatment throughout his career. Complainant also

alleged that NUWC was not complying with Affirmative Action requirements

in the area of promoting disabled individuals and that five less senior

and less experienced Electronics Engineers had received promotions to

the Senior Engineer level.

The agency provided complainant with a copy of the investigative file.

When complainant did not request a hearing within the required time

period, the agency issued a FAD.

The FAD concluded that complainant was a qualified individual with

a disability and, therefore, was entitled to protection under the

Rehabilitation Act. Rather than analyzing whether complainant had

established a prima facie case of disability discrimination, the FAD

concluded that management had articulated a legitimate non-discriminatory

reason for its actions and that complainant had not established that

this reason was pretextual. Specifically, the FAD noted that S1 was

performing the major duties of a GS-12 level position, while the duties

complainant was performing did not exceed the GS-11 level. Moreover,

although complainant had more years of service than S1, the criteria for

promotion due to accretion of duties have to do with the duties being

performed, not years of service. The FAD acknowledged that complainant's

first-line supervisor told complainant that S1 would benefit by the

promotion in the event of a Reduction-in-Force (RIF), but found that

complainant provided insufficient evidence to establish that this was

a controlling factor in S1's promotion. Moreover, the FAD noted that

this statement by complainant's supervisor did not establish that the

S1's promotion was motivated by discrimination against complainant.

Finally, the FAD concluded that complainant's attempt to establish

disability discrimination on the basis of statistical evidence was

unsuccessful. The FAD noted that of 466 Electronics Engineers (EE) at the

Keyport facility, 24 were identified as disabled. Moreover, of the 55

EEs promoted in the preceding two years, five were classified as having

a disability. The FAD found that complainant did not provide evidence

to refute these numbers<2> and that complainant provided no evidence that

five less senior EEs had received promotions to the Senior Engineer level.

CONTENTIONS ON APPEAL

On appeal, complainant notes that while his complaint focused on a

specific incident, he has been subjected to years of discrimination.

He raises objections to the investigation process and to what

he characterizes as the "mindlessly simplistic" acceptance of his

supervisor's denial of discriminatory animus.

Complainant seeks to add race discrimination as a basis for his complaint,

noting that he is an "American-Japanese mixed race minority". In support

of his claim of race discrimination, complainant points to the management

hierarchy at NUWC "that is almost entirely comprised of able-bodied

Caucasian males." Complainant also provides other anecdotal evidence

of this discrimination.

In addition to these new contentions, complainant provides an update

of his current situation at the agency, as well as information about

his former supervisor's allegedly fraudulent activities. Finally,

complainant refers to a retaliation complaint he has filed against his

former supervisor.

The agency makes no response to these contentions.

ANALYSIS AND FINDINGS

There are three initial matters that must be discussed before turning

to the matters addressed in the FAD.

First, complainant alleged in his formal complaint that NUWC is required

to practice affirmative action by federal law and that it is not complying

with these laws. To the extent that these statements were intended to

raise a separate claim as opposed to providing background evidence,

a claim that the agency is violating an unspecified federal law by

not practicing affirmative action is insufficient to state a claim

under our regulations. See Williams v. Department of the Army, EEOC

Appeal No. 01953257 (March 13, 1996) (such an claim states a generalized

grievance shared substantially by all disabled agency employees and is

insufficient to establish standing without showing a direct and personal

harm to complainant), citing Evans v. Office of Personnel Management,

EEOC Request No. 05940212 (December 9, 1994); Mayer v. Department of

Agriculture, EEOC Appeal No. 01940023 (March 10, 1994) (allegations

that an agency's affirmative action efforts for disabled employees are

insufficient do not state a claim).

Second, complainant raises a new basis for his complaint on appeal.

Specifically, complainant contends that his nonselection was motivated by

his race (Japanese-American). However, complainant identified disability

as the only basis for his EEO complaint both during the counseling

stage and in his formal EEO complaint. Complainant did not contest

the acceptance of his complaint on this single basis, and provided

no reason for failing to seek amendment of the complaint during the

investigative stage. Accordingly, we will not consider race as a basis

for his complaint on appeal. See Davis v. Department of Veterans Affairs,

EEOC Appeal No. 01954412, (October 17, 1996), citing Haddon v. United

States Postal Service, EEOC Request No. 05950688 (April 4, 1996).

Third, complainant contends on appeal that the agency conducted an

insufficient investigation of his complaint. After a careful review of

the record, we find that the agency conducted an investigation sufficient

to make findings on the relevant matters raised by complainant in his

written complaint.

Turning now to the issues addressed in the FAD, in the absence of direct

evidence of discrimination, the allocation of burdens and the order

of presentation of proof in a disparate treatment case is a three-step

process. Complainant has the initial burden of establishing a prima facie

case of discrimination. If complainant meets this burden, the burden

shifts to the agency to articulate some legitimate, non-discriminatory

reason for its challenged action. Complainant must then prove, by a

preponderance of the evidence, that the legitimate reason articulated by

the agency was not its true reason, but was a pretext for discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

A prima facie case of discrimination based on disability is established

where complainant has produced sufficient evidence to show that (1)

he is a "person with a disability" for purposes of the Rehabilitation

Act, as defined in 29 C.F.R. � 1630.2(g); (2) he is a "qualified person

with a disability," in that he is qualified for, and can perform, the

essential functions of the position he holds or desires with or without

reasonable accommodation, as specified in 29 C.F.R. � 1630.2(m); and (3)

that he was treated differently or less favorably than an individual

not in his protected group. Prewitt v. United States Postal Service,

662 F.2d 292 (5th Cir. 1981).<3>

A person with a disability is defined as one who has, has a record of

having, or is regarded as having, an impairment that substantially

limits one or more major life activities. 29 C.F.R. � 1630.2(g).

Major life activities include such things as caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning and working. 29 C.F.R. � 1630.2(i).

In the instant case, the record indicates that complainant's right

leg is amputated below the knee and that he has hyperthyroid disease.

The FAD stated that complainant met the definition of an "individual

with a disability", although it did not provide specifics in regard to

this determination. This lack of specificity, in combination with the

lack of medical evidence or testimony regarding complainant's impairments,

makes it impossible to determine whether complainant has a disability as

defined by the Rehabilitation Act. However, rather than remand this case

for a supplemental investigation on this point, we will assume, solely

for purposes of this decision, that complainant meets this definition.

A "qualified" individual with a disability is one who, with or without

reasonable accommodation, can perform the essential functions of the

position he holds or desires. See 29 C.F.R. � 1630.2(m). The agency

conceded that complainant met this definition. Given that complainant

has been performing the duties of an Electrical Engineer for a number

of years, we agree with this determination.

Finally, complainant has established that his employer treated him less

favorably than an employee outside his protected class. While the agency

did not address whether complainant had made this showing, finding instead

that the agency articulated a legitimate non-discriminatory reason for

its actions, we note that complainant has shown that he was treated less

favorably than S1 in that S1 received a promotion and complainant did not.

Moreover, S1 is not a disabled individual. Therefore, while noting the

above mentioned assumption, we find that complainant has established a

prima facie case of disability discrimination.

The agency articulated a legitimate non-discriminatory reason for its

actions. Specifically, the head of complainant's branch and complainant's

first-line supervisor (B1: no disabilities) testified that the division

head asked him to provide names of individuals who could be promoted

based on accretion of duties.<4> B1 testified that he provided a number

of names of individuals available for such a promotion, including those

of complainant and S1. He was then told that only one person from his

area could be promoted. B1 testified that he selected S1 because

S1 was working well above the GS-11 grade level in that he had been

working on the Pinger Modernization Project, utilizing Digital Signal

Processing (DSP) technology and performing duties at the GS-12 level.

The position description for the position in question listed expertise

in DSP technology as a requirement.

Because the agency articulated a legitimate non-discriminatory reason

for its selection of S1, complainant must demonstrate that this reason

is pretextual and/or that the agency was motivated by discriminatory

animus in selecting S1 over complainant. In a non-selection case,

pretext may be demonstrated in a number of ways, including a showing

that complainant's qualifications are observably superior to those of

the selectee. See Bauer v. Bailor, 647 F.2s 1037, 1048 (10th Cir. 1981);

Williams v. Department of Education, EEOC Request No. 05970561 (August

6, 1998).

In the case at hand, complainant argued that he had more time-in-grade

and more technical experience than S1. Complainant also argued

that S1 had not gained any additional duties through accretion, while

complainant had. Complainant noted that S1 was not the lead engineer on

the Pinger Modernization Project and that S1 relied on other engineers

to do his procurements. Complainant stated that S1 did not provide

project coordination or leadership.

A thorough review of the record indicates that complainant's contentions

are not supported. First, although it is the case that complainant

had more time-in-grade than S1, the agency noted that a promotion

based on accretion of duties depends on the duties being performed,

and not on length of service. Complainant offers no evidence to rebut

this argument. Moreover, complainant offers no evidence that S1 did not

meet the qualifications for the promotion. S1's work history reveals

significant experience with DSP technology, one of the main requirements

for the promotion. In sum, complainant has failed to demonstrate

that S1 was not qualified for the promotion or that complainant's own

qualifications were observably superior.

Complainant also attempted to establish pretext by relying on two

statements made by B1 when he explained to complainant and a co-worker why

S1 received the promotion. Complainant alleged, with the support of his

co-worker (CW1: no disabilities), that B1 first indicated that S1 received

a promotion in an effort to protect him in case of a Reduction-in-Force.

B1 acknowledged that he made a comment about how a promotion would help

S1 if there was a RIF, but testified that he meant it as an aside and that

the RIF did not factor into his decision to promote S1. CW1 indicated in

a memo that he recalled B1 saying that S1 received the promotion due to

his skills in DSP design and the potential RIF situation. While we find

that B1 may have based his decision to promote S1, at least partially,

on the possibility of an upcoming RIF, this does not negate the fact that

S1 had significant experience with DSP technology and that the position

description for the job required such expertise. Moreover, the fact that

B1 partially relied on an inappropriate factor in promoting S1, does not

establish that complainant's nonselection was motivated by his disability.

Complainant alleged that B1 then told him that while S1 was irreplaceable,

anyone could replace complainant.<5> B1 testified that he did tell

complainant that anyone could do his job and that he based this statement

on the fact that complainant's position did not require anything other

than the knowledge of an Electrical Engineer coming out of college.

This remark, demeaning though it may have been, does not establish that S1

was promoted instead of complainant because of complainant's disability.

Still attempting to establish pretext, complainant argued that at least

five other EEs, all of whom had less experience and less time-in-grade

than he, have been promoted to the senior engineer level. However, he

provided no evidence in regard to these five other EEs, stating neither

who they are nor when they were allegedly promoted. Complainant's mere

claim does nothing to establish that the nonselection at issue or the

unspecified promotions of others were motivated by discriminatory animus.

Finally, complainant argued that promotion statistics supported his claim

that he did not receive promotions over the years due to his disability.

Complainant alleged that there are approximately 57 EES in his department

and that, as far as he knew, he was the only physically disabled person in

his classification. He noted that there are no senior level electronics

engineers in his department who have physical disabilities and that out

of one department head, four division heads and eleven branch heads, there

is only one upper management position occupied by a disabled individual.

In disparate treatment cases, such as this one, statistical evidence is

less significant than in disparate impact cases because the ultimate issue

is whether a particular complainant was the victim of an illegitimately

motivated employment decision. See McCarty v. Department of the Navy,

EEOC Appeal No. 01965283 (January 28, 1998), citing Krodel v. Young, 748

F.2d 701, 710 (D.C. Cir. 1984). Therefore, even assuming complainant's

workforce numbers are accurate and that they establish a statistically

significant disparity in the number of disabled individuals hired

and/or promoted, such statistics do not serve, standing alone, to rebut

the agency's articulated non-discriminatory reason for not selecting

complainant for this particular promotion.

Accordingly, we find that complainant has failed to establish by

a preponderance of the evidence that the agency was motivated by

discriminatory animus when it did not promote him to a GS-12 position

in April of 1995.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the 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:

1/21/00

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

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

________________________

Equal Employment Assistant

1 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.

2 The FAD is very short on the specifics of this statistically-based

argument. A review of the investigative report reveals that the agency

provided figures that establish that the promotion rate of disabled

employees exceeds the overall promotion rate. Although the FAD does not

refer to this conclusion, we assume that the agency found that this fact

refuted any claims of statistical evidence of disability discrimination.

3 The 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 EEOC's

website: WWW.EEOC.GOV.

4 The record establishes that a promotion based on accretion of duties

can occur when: (1) the major duties of the employee's old position

are absorbed into the new position and the former is canceled; (2) the

new position has no known promotion potential; and, (3) the additional

duties do not adversely affect another encumbered position.

5 It is unclear whether CW1 was still involved in the conversation at

this point.