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).