David L. Chouteau, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2000
01973853 (E.E.O.C. Mar. 10, 2000)

01973853

03-10-2000

David L. Chouteau, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


David L. Chouteau v. United States Postal Service

01973853

March 10, 2000

David L. Chouteau, )

Complainant, )

) Appeal No. 01973853

) Agency No. 1F-942-1047-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

On April 9, 1997, David L. Chouteau (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated April 1, 1997, concerning his

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,

and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq.<1> The Commission hereby accepts the appeal in accordance with

EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

complainant had failed to prove that the agency discriminated against him

based on race, sex, physical disability and reprisal when he was issued

a Letter of Warning for irregular attendance and unscheduled absences.

BACKGROUND

Complainant was employed by the agency as a Mailhandler at the San

Francisco Bulk Mail Center (the Facility) in Richmond, California. In May

1995, he sustained an injury to his right knee (an internal derangement)

while engaged in work duties. He underwent arthroscopic knee surgery

in July 1995, and attended physical therapy thereafter. He was returned

to limited duty job status in October 1995. Complainant again suffered

an injury to his right knee in December 1995, when a wayward piece of

equipment struck him and re-injured his knee. He was again placed in a

limited duty job status on January 5, 1996, and his work restrictions

were gradually decreased until he was released to return to full duty

job status on July 1, 1996. Due to his injury, complainant received

benefits from the Office of Workers' Compensation Programs (OWCP).

Complainant initiated EEO Counseling on August 12, 1996. He filed

a formal complaint on September 20, 1996, alleging discrimination on

the bases of race (black), sex (male), physical disability (right knee

injury) and reprisal (prior EEO activity) when he was issued a Letter

of Warning (LOW) for irregular attendance and unscheduled absences.

The agency accepted the complaint for investigation and processing.

At the conclusion of the investigation, the agency issued a copy of its

investigative report and notified complainant of his right to request an

administrative hearing. After complainant failed to request a hearing,

the agency issued its FAD on April 1, 1997.

In its FAD, the agency found that the complainant had failed to establish

a prima facie case of race, sex, physical disability or retaliation

discrimination because he was unable to demonstrate that he was treated

differently than similarly situated individuals not within his class.

The agency also found that complainant had not established that he was a

person with a disability because he had not submitted any documentation

concerning his disability to substantiate his claim. It further found

that he had not shown that there was any causal connection between his

participation in protected EEO activity and the adverse action. The

agency stated that its legitimate, nondiscriminatory reason for issuing

complainant the LOW was that he had several unscheduled absences, had

left work on prior occasions without permission and without returning

to the building, and was tardy on two separate occasions and was charged

as Absent Without Leave (AWOL). The agency stated that complainant had

received an official discussion preceding the LOW. The FAD further

stated that complainant had failed to establish that the legitimate,

nondiscriminatory reason articulated by the agency for its decision was

a pretext for discrimination.

This appeal followed. On appeal, complainant submitted medical forms

filled out by his treating physician that were submitted to OWCP over

the course of treatment for his injuries, as proof of his disability.

ANALYSIS AND FINDINGS

In order to claim the protections of the Rehabilitation Act, complainant

must first establish a prima facie case of disparate treatment disability

discrimination by showing that: (1) he is an individual with a disability,

as defined by 29 C.F.R. � 1630.2(g);<2> (2) he is a qualified individual

with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) he was

subjected to an adverse personnel action under circumstances giving rise

to an inference of disability discrimination. See Prewitt v. United

States Postal Service, 662 F.2d 292 (5th Cir. 1981).

An individual with a disability is one who: (1) has a physical or mental

impairment that substantially limits one or more major life activities,

(2) has a record of such an impairment, or (3) is regarded as having

such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined

"substantially limits" as "[u]nable to perform a major life activity

that the average person in the general population can perform" or

"[s]ignificantly restricted as to the condition, manner or duration

under which an individual can perform a particular major life activity

as compared to the condition, manner, or duration under which the

average person in the general population can perform that same major

life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities

include such functions as caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. EEOC

Regulation 29 C.F.R. � 1630.2(i).

Complainant submitted medical documentation on appeal in an attempt to

support his claim that his right knee injury rose to the level of a

"disability" under the definition. That documentation consisted of

the forms submitted by complainant to the OWCP Claims Examiner which

supported his claim for OWCP benefits. It detailed the course of

treatment complainant received for his knee injury between May 1995 and

February 1997. The documentation did not, however, detail in what way

a major life activity of the complainant had been substantially limited

by the injury, nor did complainant testify to such in his affidavit.

Individuals are not necessarily regarded as individuals with disabilities,

as defined by the Rehabilitation Act, merely because they have been

provided with a limited duty assignment because of an on-the-job injury

or because they have received an award from OWCP. The individual must

still establish that their medical condition meets the regulations set

forth at 29 C.F.R. � 1630.2(g). See Waller v. Department of Defense,

EEOC Request No. 05940919 (April 6, 1995); Bailey v. U.S. Postal Service,

EEOC Appeal No. 01952545 (March 7, 1996). Without medical documentation

of a substantial limitation of a major life activity, we find that

complainant is not an "individual with a disability" and therefore has

failed to establish a prima facie case of disability discrimination.

In reaching the above determination, we have examined complainant's

disability claim in light of the Supreme Court's recent decisions in

Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139 (1999);

Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133

(1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162

(1999); Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119

S.Ct 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196

(1998).

We now turn to an examination of whether complainant was a victim

of discrimination based on his race, sex, or reprisal. A claim of

disparate treatment is examined under the three-part analysis first

enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he 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, 411 U.S. at 802; 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). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder 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).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's claims of discrimination, the agency

claimed that the LOW was warranted by complainant's attendance record.

The record contained copies of attendance records from the agency

which showed the absences from work as specified by the agency in the

LOW. We find, therefore, that the agency has articulated a legitimate,

nondiscriminatory reason for its action.

Since the agency articulated a legitimate, nondiscriminatory reason

for its action, the burden returns to the complainant to demonstrate

that the agency's articulated reason was a pretext for discrimination.

We find that complainant has failed to do so. Complainant presented

no argument, either in his affidavit or on appeal, beyond conclusory

statements, that went toward the issue of how the LOW was motivated

by discrimination based on race, sex or retaliation. Therefore, the

agency's determination that complainant failed to establish that he was

discriminated against was correct.

Accordingly, the decision of the agency was proper and is AFFIRMED.

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:

March 10, 2000

______________ __________________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

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:

_______________ __________________________

Date

1 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.

2 The October 1992 amendments to the Rehabilitation Act provide that the

standards used to determine whether Section 501 of the Rehabilitation

Act has been violated in a complaint alleging non-affirmative action

employment discrimination shall be the standards applied under Title

I of the Americans With Disabilities Act (ADA). 29 U.S.C. �791(g).

The regulations at 29 C.F.R. �1630 implement the equal employment

provisions of the ADA.