01972685
05-11-2000
Andrzej Rafalski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Area), Agency.
Andrzej Rafalski v. United States Postal Service
01972685
May 11, 2000
Andrzej Rafalski, )
Complainant, )
) Appeal No. 01972685
v. ) Agency No. 4D220101995
) Hearing No. 100-95-7904X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Area), )
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 (Polish), sex (male), reprisal (prior EEO
activity), age (D.O.B. 12/11/49), physical disability (back injury)
and mental disability (depression and anxiety disorder), 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: (1) in October of 1994, he was
denied Electronic Time Clock (ETC) training and work; (2) on October
19, 1994, he became aware that management submitted false/inaccurate
statements and provided records of prior disciplinary action in response
to complainant's injury compensation claim; (3) on October 29, 1994, he
was denied overtime; (4) on September 20, 1994, he was denied a transfer
and/or changes in his work environment; and (5) on September 19, 1994,
he was denied Automotive Vehicle Utilization System (AVUS) training.
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
Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk at the agency's Main Post Office ("facility")
in Fairfax, Virginia. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
on January 6, 1995. At the conclusion of the investigation, complainant
requested a hearing before an EEOC Administrative Judge. However,
complainant ultimately withdrew his request for a hearing and requested
a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of discrimination based on sex, national origin or age because he
presented no evidence that similarly situated individuals not in his
protected classes were treated differently under similar circumstances.
In addition, the FAD found that complainant failed to demonstrate that
"but for" his age, he would not have been subjected to the agency's
actions at issue. The FAD further found that complainant failed to
establish a prima facie case of reprisal regarding any of his allegations,
as although complainant engaged in protected activity in 1991, it was
not credible to suggest that management's actions against complainant
were taken for retaliatory purposes.
The FAD also considered the testimony of agency officials who stated that:
(1) complainant was in fact provided ETC training in November of 1993; (2)
there was no evidence that the facility Postmaster responded in anything
but a truthful manner to complainant's injury compensation claim; (3)
complainant was denied overtime opportunities as his medical documentation
restricted his ability to work to no more than eight (8) hours per day
and the positions required physical activities which were prohibited
by his physician; (4) there was insufficient evidence to suggest that
complainant formally requested a transfer or change in working conditions
to the Postmaster; and (5) complainant's supervisor testified that while
training on the AVUS may have been denied on September 19, 1994, such
opportunities were provided to complainant on other dates. As such,
the FAD found that even assuming that complainant had established a
prima facie case of discrimination on any basis, the agency articulated
legitimate, nondiscriminatory reasons for the actions taken, which were
not proven to be pretextual in nature.
Finally, the FAD found that complainant failed to establish a prima
facie case of physical or mental disability discrimination, as he
did not demonstrate that his physical impairments rose to the level of
substantially limiting one or more of his major life activities. The FAD
also found that the record established that complainant's depression
and anxiety disorder were of a temporary nature and thus he was not
covered by the provisions of the Rehabilitation Act. In addition,
the FAD found that complainant failed to establish that there were any
similarly situated nondisabled employees that were treated differently
under similar circumstances. Neither complainant nor the agency have
submitted arguments on appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), the Commission agrees with the agency that complainant
failed to establish a prima facie case of national origin, age or sex
discrimination as the record is devoid of evidence which establishes any
similarly situated employees not in complainant's protected groups who
were treated differently, or that but for complainant's age he would not
have been subjected to the agency actions at issue. We further find that
complainant failed to present any other relevant evidence which raises an
inference of discrimination. In addition, we agree with the FAD's finding
that the three (3) year gap between complainant's protected activity
and the agency's actions is too distant in time and manner to infer
retaliatory animus. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
Regarding complainant's claims of physical and mental disability
discrimination, the Commission finds that even assuming, arguendo,
complainant was a qualified individual with a disability and established
a prima facie case of disability discrimination, the agency articulated
legitimate, nondiscriminatory reasons for the actions taken against
complainant, and complainant failed to present evidence that more likely
than not, the agency's articulated reasons for its actions were a pretext
for discrimination. Prewitt v. United States Postal Service, 662 F.2d
292 (5th Cir. 1981). Therefore, after a careful review of the record,
and arguments and evidence not specifically addressed in this decision,
and for the reasons stated herein, we affirm the FAD.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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: 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.