01A12459
03-07-2002
Daniel W. Carson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Daniel W. Carson v. United States Postal Service
01A12459
March 7, 2002
.
Daniel W. Carson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A12459
Agency No. 4-C-080-0017-97
Hearing No. 170-98-8063X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint<1> of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<2> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant filed a formal EEO complaint on
December 7, 1996, alleging that the agency had discriminated against him
on the basis of disability (anxiety and depression)<3> when, on June 12,
1996, he received an unacceptable rating on his evaluation.<4>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant did not establish a prima facie case of
disability discrimination because the circumstances giving rise to the
adverse treatment did not give rise to an inference of discrimination.
The AJ further concluded, nonetheless, that the agency articulated
legitimate, non-discriminatory reasons for its actions. The AJ found
that complainant, according to his position description and performance
expectations, was charged with certain budgetary functions that he failed
to perform. The AJ found that complainant did not rebut this reason.
Moreover, the record does not indicate that there was any nexus between
complainant's disability and his failure to perform these functions.
In reaching this conclusion, the AJ concluded that complainant's argument
that he should not have been responsible for the budget functions did
not relate to discrimination.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding the
adverse action give rise to an inference of discrimination. Lawson v. CSX
Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
After a careful review of the record, the Commission finds that
the AJ's findings of fact are supported by substantial evidence
and that the AJ's decision properly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws.
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
and assuming arguendo, that complainant is a qualified individual with
a disability as defined by the Rehabilitation Act, complainant had
specific job requirements that he did not meet. The agency states
that this is the reason for the unsuccessful rating and complainant
has not established that this reason is pretextual. Accordingly, we
find complainant has failed to demonstrate by a preponderance of the
evidence that discrimination occurred. We discern no basis to disturb
the AJ's decision. Therefore, 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 agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 7, 2002
__________________
Date
1 The agency failed to submit a copy of the formal complaint, among
other items, with the file. The formal complaint is not necessary
to the disposition of the instant appeal, therefore we can proceed.
Nonetheless, we formally admonish the agency, and remind it that it is
not enough to submit a checklist of items included in the administrative
file; the items checked need to actually be in the file sent.
2 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.
3 Complainant originally also alleged discrimination on the basis of
national origin (Scots/Irish), in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant subsequently alerted the AJ that he wished to drop national
origin as a basis. Accordingly, the AJ only proceeded on the complaint
as to the basis of disability.
4 According to the decision of the AJ, complainant also alleged a second
claim of discrimination based on national origin and disability occurred
when, on June 18, 1996, a female letter carrier was allegedly encouraged
to file a sexual harassment complaint against complainant. The AJ
dismissed this claim, concluding that complainant did not demonstrate
how he was harmed by hearing a rumor which never materialized into
a complaint. See 29 C.F.R. � 1614.109(b).