Alexander Santino, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01975404 (E.E.O.C. Jan. 21, 2000)

01975404

01-21-2000

Alexander Santino, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.


Alexander Santino v. United States Postal Service

01975404

January 21, 2000

Alexander Santino, )

Complainant, )

) Appeal No. 01975404

v. ) Agency No. 4C-190-1205-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of physical disability (Muscular Dystrophy), in violation of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>

Complainant alleges he was discriminated against when, on July 19,

1995, he was informed his medical documentation was not acceptable.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, complainant was

employed as a Letter Carrier, at the agency's Frankford Station,

Philadelphia, Pennsylvania facility. Complainant alleged on July 19,

1995, he returned to work from an absence, which was due to an episode of

muscle spasms related to his Muscular Dystrophy. When he presented his

supervisor with a doctor's note, she deemed it unacceptable. According to

complainant's affidavit, it was at this point that his supervisor began

a verbal confrontation with complainant, and yelled at him while on the

workroom floor. He averred that she followed him into the Manager's

office, continued yelling at him, and threatened him with a suspension.

Complainant stated that the event caused him to suffer chest pains,

for which he was treated at intensive care at a hospital.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on June 20, 1996. At the

conclusion of the investigation, complainant requested that the agency

issue a final agency decision.

The FAD concluded that complainant failed to establish a prima facie

case of disability discrimination because he presented no evidence

that similarly situated individuals not in his protected class were

treated differently under similar circumstances. The agency also found

that complainant produced no evidence that his disability was causally

related to the supervisor's determination. The agency also found that

the medical documentation was not acceptable since it did not cover

complainant's entire absence.

On appeal, complainant contends that the agency failed to consider a

number of his arguments. He argues that the supervisor caused him great

stress and embarrassment when she yelled at him across the workroom

floor. He argued that if the supervisor found the note unacceptable,

she should have completed the appropriate form instead of yelling at him.

The agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) and Prewitt v. United States

Postal Service, 662 F.2d 292 (5th Cir. 1981), the Commission agrees

with the agency that complainant failed to establish a prima facie

case of disability discrimination because he failed to show any causal

relationship between his disability and the agency's actions. In reaching

this conclusion, we note that the supervisor averred in her affidavit

that she was unaware complainant suffered from a disability. Complainant

failed to produce persuasive evidence to the contrary. Moreover, we note

the record itself contains little evidence that agency officials were

aware that complainant suffered from Muscular Dystrophy.

Assuming, arguendo, that complainant established an inference

of discrimination, we find the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, the supervisor

averred that complainant's note did not cover the first three days of

his absence. When she explained to complainant that his documentation

was unacceptable, complainant told her that he did not need to present

medical documentation until the absence was over three days in length.

At that point, she stated, the verbal confrontation began.

We find complainant failed to present any evidence that proves, more

likely than not, the agency's reasons for its actions were a pretext for

discrimination based on his disability. Indeed, complainant failed to

rebut the supervisor's statements, or provide any other evidence that

showed a discriminatory animus towards his disability.

To the extent that complainant alleged in his complaint that he was

subjected to harassment, the Commission notes that unless the conduct

is severe, a single incident or group of isolated incidents will not be

regarded as discriminatory harassment. See generally, Walker v. Ford Motor

Co., 684 F. 2d 1355 (11th Cir. 1982). Accordingly, we find complainant

failed to establish a prima facie case of harassment.

After a careful review of the record, including complainant's contentions

on appeal, the agency's response, and arguments and evidence not

specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 this decision. 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:

January 21, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

_________________________

1On 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.