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.