EEOC finds fault with Agency FAD but affirmed its finding of no discrimination. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of disability (right leg amputated above the knee; hyperthyroid disease) when he was passed over for promotion while less-senior personnel were promoted. Following the initial investigation, the Agency issued a Final Agency Decision finding no discrimination. The FAD concluded that Complainant was a qualified individual with a disability and entitled to protection; however, rather than analyzing whether the Complainant had established a prima facie case of disability, it concluded that the Agency had articulated a legitimate non-discriminatory reason for its actions and Complainant had not established the reasons were pretextual. Complainant appealed to the Equal Employment Opportunity Commission’s (EEOC’s) Office of Federal Operations (OFO).

On appeal, the OFO noted that the previous record and analysis were lacking in several areas; however, rather than remanding the case for supplemental investigation, the OFO decided to assume the Complainant met the definition of a qualified individual with a disability. The OFO then noted that the Agency did not address whether the Complainant showed that his employer treated him less favorably than an employee outside his protected class. Noting that two less-senior employees without a disability were treated more favorably than the Complainant, the OFO held he established a prima facie case of disability discrimination. The OFO then held that the Agency articulated a legitimate non-discriminatory reason for their actions, and looked at whether the Complainant could prove such reasons were pretextual. Noting that although Complainant was a more-senior employee, the selected candidate’s work history showed significant experience with the technology needed for the position, and Complainant was unable to demonstrate that the promoted employee was not qualified for the position or that Complainant’s own qualifications were observably superior. Holding that the Complainant was unable to establish by a preponderance of the evidence that the Agency was motivated by discriminatory animus, the OFO affirmed the FAD.

Theodore H. Stethem v. Department of the Navy, EEOC Appeal No. 01973209 (January 21, 2000) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01973209.txt