0120081071
08-12-2009
William J. Kelton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
William J. Kelton,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081071
Hearing No. 440-2007-00203X
Agency No. 200J-0609-2007100034
DECISION
On December 19, 2007, complainant filed an appeal from the agency's
November 19, 2007 final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected to
discrimination based on disability when he was denied the opportunity
to apply for a vacant Motor Vehicle Operator position.
BACKGROUND
The record reflects that on or around September 24, 2006, complainant
viewed a vacancy announcement posted on the internet for the position
of Motor Vehicle Operator, WG-5703-6, at an agency facility in Marion,
Illinois. On September 25, 2006, complainant went to the agency's Human
Resources Office (HRO) to submit an application for the position, and
he was allegedly informed by an agency official that he could not apply
for the position because he was not a veteran. As a result, complainant
did not submit an application. However, after the vacancy announcement
had closed, complainant learned that the agency official was mistaken,
and he should have been allowed to apply for the position.
On December 18, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of disability (legally blind
in one eye) when, on September 25, 2006, he was denied the right to
apply for the position of Motor Vehicle Operator, WG-6, MPA #2006-489M.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing, but the AJ denied the hearing request on the grounds that
complainant failed to file pre-hearing submissions or respond to the
agency's discovery requests. The AJ remanded the complaint to the agency,
and the agency subsequently issued a final decision, pursuant to 29
C.F.R. � 1614.110(b), finding no discrimination. The agency's decision
found that complainant failed to establish that he was an individual with
a disability, and, even if complainant's visual impairment constituted
a disability for purposes of the Rehabilitation Act, he failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination because an agency official lied when she informed him
that only veterans could apply for the Motor Vehicle Operator position.
He argues that individuals with disabilities could have applied for the
position, and he should have been allowed to submit an application.
Complainant argues that that "the representative made a mistake,
and the [agency] should have to correct it." He further argues that
he is an individual with a disability and that the agency's decision
misinterpreted the portion of his affidavit discussing his limitations.
Complainant also argues that a Human Resources Specialist's offer to let
him apply for the position during mediation amounts to an admission that
the agency had made a mistake.
In response, the agency urges the Commission to affirm its final decision.
The agency argues that complainant failed to establish a prima facie
case of disability discrimination because there is no evidence that
the agency was aware of complainant's alleged disability or that his
condition led the agency to deter him from applying for the position.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie case of disability discrimination under a
disparate treatment theory, the complainant must demonstrate that: (1) he
is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g);
(2) he is a qualified individual with a disability pursuant to 29 C.F.R. �
1630.2(m); (3) he was subjected to an adverse employment action; and
(4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Dremmel v. Department of Veterans Affairs,
EEOC Appeal No. 0720060044 (July 16, 2008) (citing Lawson v. CSX Transp.,
Inc., 245 F.3d 916, 922 (7th Cir. 2001)).
Upon review, we find that complainant failed to establish a prima facie
case of disability discrimination.1 We find that complainant failed to
provide any evidence from which an inference of disability discrimination
could be established because there is no evidence the agency was ever
aware of complainant's disability during the relevant time period.
The record reflects that complainant was unable to identify the specific
agency official he allegedly spoke to at the HRO; additionally, he did
not inform that official that he was an individual with a disability.
Complainant stated in his own affidavit that "they didn't actually know
I had a disability." When asked whether complainant felt he was treated
differently because of his disability, he stated "[w]ell, not really,
because they didn't know about it . . . Had they known about it, had
I been able to tell them about it, but it was such a brief meeting, it
was just like well, you can't apply." Similarly, complainant states on
appeal, "[d]id I feel I was treated differently because of my disability?
I had to say no because disabilities never came up. This lady put a road
block up, no one but veterans could apply and that was it . . . she not
only discriminated against people with disabilities she discriminated
against all other status eligible classifications." Although complainant
may have received incorrect information regarding his eligibility to
apply for the Motor Vehicle Operator position from an agency official,
there is simply no evidence that the official provided misinformation
to complainant because of his disability.
Finally, we find that the fact that the agency may have offered
complainant an opportunity to apply for the position at a later date does
not provide sufficient evidence from which an inference of discrimination
could be established in this case. We note that complainant stated in
his affidavit that he was subsequently offered the opportunity to submit
an application because the vacancy announcement had been reopened.
CONCLUSION
Accordingly, based on our thorough review of the record, the Commission
determines that the agency's final decision finding no discrimination
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___8/12/09_______________
Date
1 For the purposes of the instant decision, we assume without finding
that complainant is a qualified individual with a disability within the
meaning of the Rehabilitation Act.
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0120081071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081071