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.