01A00887
06-20-2002
Thomas E. Gillette, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Thomas E. Gillette v. Department of Transportation
01A00887
June 20, 2002
.
Thomas E. Gillette,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A00887
Agency No. 2-98-2037
Hearing No. 100-99-7699X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the EEOC Administrative Judge (AJ)
properly issued a decision in summary judgment finding no discrimination.
BACKGROUND
The record reveals that complainant, a Senior Audio Visual Producer at
the agency's Federal Aviation Administration Headquarters Building 10A
in Washington, D.C., filed a formal EEO complaint on December 23, 1997,
alleging that the agency had discriminated against him on the bases
of disability (severe allergic reaction) and age (D.O.B. September 11,
1940) when the agency failed to accommodate his disability.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of disability-based discrimination. The record indicates that on
April 19, 1996, complainant experienced a severe allergic reaction at his
official duty station within Building 10A. He began experiencing these
severe allergic reactions not only within his official duty station
but whenever he entered into Building 10A. His symptoms included
loss of voice, dry and tight throat, severe skin redness and itching,
some tightness in his chest, lightheadedness, nausea, fatigue, and
sensitive skin. Complainant sought medical treatment from several medical
specialists and health care providers. Although he was under treatment,
he developed a greater sensitivity to Building 10A to the point he could
not enter the building without experiencing severe allergic reactions.
On May 28, 1998, complainant's physicians advised him not to go into
Building 10A.
The AJ found that complainant failed to demonstrate that his impairment
substantially limited him in a major life activity. In particular,
the AJ noted that complainant's condition solely limits his ability
to work in Building 10A. The AJ indicated that there was no evidence
that he could not work in a class of jobs or in a broad range of jobs
in various classes. The AJ concluded that complainant cannot work in
one job in one particular location. The AJ determined that this was
insufficient to establish that complainant is an individual with a
disability covered under the Rehabilitation Act.
The AJ also found that complainant failed to establish a prima facie
case of age-based discrimination. Specifically, the AJ determined that
complainant presented no objective evidence supporting the allegation that
the agency's refusal to provide an accommodation was based upon his age.
Therefore, she concluded that complainant did not show that the agency's
action was discriminatory based on his age.
The agency's final order implemented the AJ's finding of no
discrimination.
On appeal, complainant contends that the AJ erred when she relied on a
line of Commission cases which involved complainants who could perform
the functions of their positions in other workplaces. He also reargues
issues raised to the AJ. Complainant attempts to distinguish his case
from the cases cited in the AJ's decision regarding coverage under the
Rehabilitation Act. In particular, he stated that he would have gladly
performed the functions of his positions at another site, however he
was prevented from doing so because of the agency's refusal to move the
equipment necessary to perform the duties of his position. In response,
the agency disputes complainant's claim that he is an individual with
a disability covered under the Rehabilitation Act. In particular, the
agency argues that his impairment is not substantially limiting because
it is affected only in a limited venue. The agency also requests that
the Commission affirm its adoption of the AJ's summary judgment decision
finding of no discrimination.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence to
establish his prima facie cases of discrimination based on age and/or
disability.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 20, 2002
__________________
Date