01977101
08-03-2000
Alexander Medrano, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Alexander Medrano v. United States Postal Service
01977101
August 3, 2000
Alexander Medrano, )
Complainant, )
) Appeal No. 01977101
v. ) Agency No. 4G-770-1450-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of national origin (Hispanic), race (Caucasian), sex (male), age
(51), physical disability (carpal tunnel syndrome, bad ankle, diabetes,
and hypertension) and reprisal (prior EEO activity), 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,<1> as amended,
29 U.S.C. �791, et seq.<2> Complainant alleges he was discriminated
against when, on June 6, 1996, two blocks of walking deliveries were
added to his postal delivery route. The appeal is accepted pursuant to
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405). For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was employed
as a PS-05 City Letter Carrier at the agency's North Shepherd Station
in Houston, Texas. Complainant alleged that although the agency was
aware of his injuries as he requested accommodation beginning in 1995,
two blocks of walking deliveries were added to his delivery route as
a means of forcing him off the route. Believing he was a victim of
discrimination, complainant sought EEO counseling and, subsequently, filed
a complaint on August 3, 1996. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge,
or request a final decision by the agency. After complainant failed to
respond within the appropriate time frame, the agency issued its FAD.
The FAD concluded that complainant failed to establish a prima facie case
of race, age and national origin discrimination because he presented no
evidence that similarly situated individuals not in his protected classes
were treated differently under similar circumstances. In so finding,
the FAD noted that similar walking deliveries were added to the routes
of similarly situated employees not in complainant's protected classes.
The FAD also found that even if complainant had established a prima
facie case of discrimination, the agency articulated a legitimate,
nondiscriminatory reason for the action taken, namely, that the Manager,
Customer Services (MCS) of the North Shepherd Station, made the additions
without considering whether the territory involved walking or riding.
The MCS further stated that he was not aware that complainant had any
medical limitation at the time the new routes were added.
The FAD also found that complainant failed to establish a prima facie case
of physical disability discrimination. The FAD found that complainant
failed to demonstrate that any of his injuries (bad ankle, wrist injury)
were permanent in nature or that they substantially limited a major life
activity. The FAD further found that complainant failed to establish
that he had carpal tunnel syndrom, diabetes or hypertension, or that, if
he did, that they substantially limited a major life activity. Finally,
the FAD found that complainant failed to establish a prima facie case
of retaliation, as although the MCS was aware of complainant's prior EEO
activity, there was no causal connection between the EEO activity and the
route adjustment. The FAD found that complainant failed to demonstrate
that �but for� his prior EEO activity, he would not have had the walking
deliveries added to his route. Complainant has made no arguments on
appeal.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), the Commission initially finds that the
agency correctly found that complainant failed to establish a prima
facie case of race, age or national origin discrimination. The record
reflects that there were no similarly situated City Letter Carriers not in
complainant's protected groups who were treated differently under similar
circumstances. In determining whether complainant was discriminated
under the Rehabilitation Act, he must show that he is an individual with
a disability within the meaning of the regulations. EEOC Regulation 29
C.F.R. �1630.2(g) defines an individual with a disability as one who:
1) has a physical or mental impairment that substantially limits one
or more of that person's major life activities, 2) has a history of
such impairment, or 3) is regarded as having such an impairment. EEOC
Regulation 29 C.F.R. �1630.2(i) defines "major life activities" as
including the functions of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
Complainant also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. �1630.2(m). That section
defines qualified individual with a disability as meaning, with respect
to employment, an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the
position in question.
The medical evidence of record shows that while complainant suffered
injuries to his right wrist in 1993, and sprained his right ankle in
1995, the physicians who examined him authorized him to return to his
usual position immediately without limitations. In addition, there is
no evidence that complainant has carpal tunnel syndrome, diabetes or
hypertension, or that if he did, that these conditions substantially
limited his performance of any major life activities. Further, the
testimony of the MCS and the record reflect that complainant did not
have a record of, nor was he regarded as, having an impairment which
substantially limited a major life activity when the additions were
made to his route. We note that the record is devoid of evidence that
complainant requested a reasonable accommodation as early as 1981.
As a result, we agree with the FAD that complainant failed to establish
that he is an individual with a disability within the meaning of the
Rehabilitation Act.
Finally, we disagree with the FAD and find that complainant has
established a prima facie case of retaliation. The record reflects
that the MCS was aware of complainant's prior EEO activity and added the
walking streets to complainant's route within such a period of time that
a retaliatory motive may be inferred. Hochstadt v. Worchester Foundation
for Experimental Biology, 425 F.Supp. 318 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). We further find that the agency articulated legitimate,
nondiscriminatory reasons for its action, namely that management made a
decision to add additional territory to the routes of several carriers,
as close to the original route regardless of the type of delivery.
Having carefully reviewed the record, we find that complainant has failed
to establish that the foregoing reasons were pretextual. The weight
of the evidence establishes that although the MCS knew of complainant's
protected EEO activity, the additions were uniformly made to the routes of
various postal carriers, and were not motivated by discriminatory animus.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Moore v. USPS,
EEOC Appeal No. 01950134 (April 17, 1997). Therefore, for the reasons
stated above and after a careful review of the record and evidence not
specifically addressed in this decision, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 (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:
August 3, 2000
_______________ _________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. Since that time, the ADA
regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website at
www.eeoc.gov.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.