01A01812
08-08-2002
Robert M. Lester, Sr., Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Robert M. Lester, Sr. v. Department of Justice
01A01812
August 8, 2002
.
Robert M. Lester, Sr.,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A01812
Agency No. P-95-8745
Hearing No. 280-98-4048X
DECISION
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. 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 her decision in summary judgement in favor of the agency.
BACKGROUND
The record reveals that complainant applied for a Correctional Officer
position with the agency in Spring 1995. In June 1995, he was called
by the agency for an interview. He reported to the agency's Human
Resources Office on June 16, 1995. While there he submitted additional
paperwork to the Human Resources Specialist (HR Specialist). The HR
Specialist reviewed his paperwork and questioned him about his height and
weight as noted on the form. He indicated that it should be accurate.
The HR Specialist asked complainant if he would submit to being weighed.
When he was weighed, the scale noted he weighed twenty-four pounds more
than the weight he listed on the form. The HR Specialist informed
complainant that he exceeded the weight requirement for his height
for the position by over fifty pounds. Complainant was then given the
choice of declining the interview on that day and returning after he
lost enough weight or have the agency dismiss him from the Register.
Complainant indicated that he had to select the first option and told
the agency that he would lose the weight by October 1995. The agency
never asked complainant to be interviewed for the position again.
Complainant filed a formal EEO complaint on July 21, 1995, alleging
that the agency discriminated against him on the basis of disability
(overweight) when on June 16, 1995, it denied him an interview for the
Correctional Officer position. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (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 discrimination. Specifically, the AJ found that
being overweight is not a disabling condition without any evidence that
the condition substantially limits a major life activity. The AJ noted
that complainant did not allege that his condition has a physiological
basis nor that his weight limits him in any major life activity.
Therefore, the AJ concluded that complainant failed to establish that
he is an individual with a disability under the Rehabilitation Act.
Accordingly, the AJ found that complainant failed to establish that the
agency discriminated against him as alleged.<1>
The agency's final order accepted the AJ's determination that complainant
was not discriminated against as alleged. The agency found that
complainant failed to show that he had an impairment. Assuming his weight
was an impairment, the final order determined that complainant failed to
establish that he was substantially limited in any major life activity.
Furthermore, the final order concluded that the agency did not regard
complainant as having an impairment.
On appeal, complainant contends that his weight is a physical
characteristic. He also argues that he was regarded as "someone less
than physically able to perform the essential elements of the position
[for which he] applied."
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. 29 C.F.R. � 1614.109 (g). 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 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. We note, however, that the AJ failed to address complainant's
claim that he was regarded as having a disability. Therefore, we shall
address complainant's argument.
Complainant can be regarded as disabled if an impairment is perceived
as substantially limiting the performance of a major life activity, or
if he has no impairment but is perceived as having an impairment which
substantially limits a major life activity. 29 C.F.R. � 1630.2 (1).
Upon review of the record, we find that complainant failed to do so.
Complainant claimed that he was perceived as disabled because the agency
was aware of his weight. The mere awareness of complainant's weight
is not sufficient basis to support a finding that the agency regarded
him as having a disability.<2> See Ervin v. Department of Justice,
EEOC Appeal No. 01985590 (September 14, 2001). Accordingly, we find
that complainant failed to establish that the agency regarded him as an
individual with a disability. Therefore, we conclude that complainant
did not show that he was discriminated against as alleged.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's final order finding no discrimination.
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
August 8, 2002
__________________
Date
1 The AJ also noted that the agency no longer uses the height/weight
requirement for its application process.
2 Obesity is considered a disabling condition only in rare instances.
29 C.F.R. 1630.2(j). Complainant adduced no medical evidence for his
alleged impairment, nor did he show that the agency regarded his weight
as an impairment or a physiological condition which substantially limited
a major life activity.