disparate treatment analysis
and found that complainant failed to show that similarly-situated
co-workers were treated more favorably under similar circumstances.
Disparate Treatment - Disability
As a threshold matter, a complainant claiming protections under
the Rehabilitation Act must show that s/he is an individual with a
disability within the meaning of the Rehabilitation Act. An individual
with a disability is one who has, has a record of having, or is regarded
as having an impairment that substantially limits one or more major
life activities. 29 C.F.R. § 1630.2(g). Major life activities include
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. ' 1630.2(i).4
For purposes of further analysis, we assume, arguendo, without finding,
that complainant established that he is an individual with a disability
and is entitled to coverage under the Rehabilitation Act.
In general, disparate treatment claims, such as the complaint herein,
are examined under a tripartite analysis whereby a complainant must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). 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). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).