01971734
03-10-1999
Sarah D. Pearce, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Sarah D. Pearce, )
Appellant, )
) Appeal No. 01971734
v. ) Agency No. BUFR9308D1380
) Hearing No. 360-94-8331X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of reprisal (prior EEO activity),
age (62), and mental disability (perceived), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791, et seq. Appellant alleges she was discriminated against
when: (1) she was restricted in job assignments; (2) limitations
were placed on her duties; (3) she was placed in an organizational
structure which disadvantaged her professional opportunities; (4) she was
isolated in the work environment; and (5) she was given inappropriate
accommodations to a perceived incapacity without benefit of a fitness
for duty examination.<1> The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED as CLARIFIED.
The record reveals that appellant, currently retired, but at the relevant
time a Secretary-Typist at the Brigade Judge Advocate's Office, Fort Sam
Houston, Texas, filed a formal EEO complaint with the agency on August
27, 1993, alleging that the agency had discriminated against her as
referenced above. See footnote 1. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). After the AJ remanded the
case for further investigation based on the redefined issues, a hearing
was conducted, and following the hearing, the AJ issued a Recommended
Decision (RD) finding no discrimination.
The AJ concluded that appellant established prima facie cases of age
discrimination and retaliation, as well as disability discrimination,
finding that the agency perceived appellant as disabled based on
her supervisor's testimony that he thought she may have �early
Alzheimer's.� The AJ then concluded that the agency articulated
legitimate, non-discriminatory reasons for its actions, namely, that
appellant's work duties were modified and reduced because she was
�intellectually� unable to handle the work, and that after inquiring
about changing her job description to more accurately reflect her duties,
agency management officials decided not to pursue this action because
her position and salary would be downgraded. While appellant argued
that she was perceived, and thus treated, as mentally incompetent,
the AJ found that the source of the problems resulted from her poor
performance, notwithstanding a �fully successful� performance rating,
which the AJ determined was �artificially inflated,� and that their
remarks about her mental incompetence did not motivate their actions, but
were an attempt to explain her performance problems. For these reasons,
the AJ concluded that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. The agency's FAD adopted the AJ's RD.
On appeal, appellant, through counsel, raised a number of legal arguments
that the AJ erred as a matter of law. The agency requests that we affirm
its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Without commenting on the propriety of
the AJ's finding that appellant was perceived as disabled, and assuming,
arguendo, that she established a prima facie case under all of her alleged
bases, we agree with the AJ that the agency's actions were motivated,
not by any myth, fear or stereotype about her mental competence, but by
her poor performance and confrontational posture when her supervisors
attempted to counsel her about her performance. See 29 C.F.R. � 1630.2(l).
Unlike typical �regarded as� cases, such as School Board of Nassau County
v. Arline, 480 U.S. 273 (1987), wherein adverse actions are rooted on
a myth, fear or stereotype, here, the agency's actions were motivated
by her performance deficiencies. While the remark about Alzheimer's
can also evidence age animus, under Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), we find that appellant failed to demonstrate that but for
her age, the agency would have taken the same actions. We finally note
that an individual who does not actually have a substantially limiting
impairment, does not require reasonable accommodation. See Shultz
v. United States Postal Service, EEOC Request No. 05950724 (September
26, 1996). After carefully considering the AJ's RD and appellant's
contentions on appeal, we AFFIRM, as CLARIFIED, the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
March 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that the above issues and bases were changed
from those alleged in appellant's formal complaint and the agency's
acceptance letter. Neither party objected to the modification of the
issues and bases by the Administrative Judge. See FAD at page 1.