Debra Rowley Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
01975545 (E.E.O.C. Sep. 13, 2000)

01975545

09-13-2000

Debra Rowley Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Debra Rowley v. United States Postal Service

01975545

09-13-00

.

Debra Rowley

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01975545

Agency No. 1J-461-1005-96

DECISION

Complainant timely filed an appeal with the Commission from a final

decision of the agency concerning her complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act of

1973, 29 U.S.C. � 791.<1> The Commission accepts this appeal.

Complainant filed a complaint in which she alleged that the agency

discriminated against her on the bases of physical disability

(osteoarthritis / club foot) and reprisal by terminating her during

probation, effective October 6, 1995. The agency's stated reason for

complainant's removal was her failure to be regular in attendance during

her probationary period. Investigative Report (IR) 75.

To bring a claim of disability discrimination in connection with her

termination, complainant must first establish that she has a disability

within the meaning of the Rehabilitation Act. Murphy v. United Parcel

Service, Inc., 119 S.ct. 2133 (1999); Sutton v. United Air Lines, Inc.,

119 S.Ct. 2139, 2141-42 (1999); Albertsons, Inc., v. Kirkingburg, 119

S.Ct. 2162, 2167-68 (1999). An individual with a disability is one who

has, has a record of, or is regarded as having a physical impairment that

substantially limits one or more of her major life activities. 29 C.F.R. �

1614.203(a)(1); 29 C.F.R. � 1630.2(g). Major life activities include

caring for one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. 29 C.F.R. � 1630(2)(i).<2>

In her affidavit, complainant characterized her condition as

osteoarthritis in both ankles and feet, which caused her severe pain.

She also stated that she had been born with clubbed feet, and that she

walked with a severe limp. IR 85A. The supervisor confirmed that

she had, in fact, observed complainant walk with a limp. IR 80-81.

There is also evidence that, in July of 1995, she underwent surgery

on one or both of her ankles. IR 47-48. When viewed as a whole, the

record is sufficient to establish that complainant was substantially

limited in the major life activity of walking.

Nevertheless, we find that she failed to show a nexus between her

disability and her use of leave. Dougherty v. Department of the Army,

EEOC Petition No. 03960044 (July 12, 1996). Complainant took between five

and six weeks of leave between April and October 1995. Leave slips that

complainant submitted during that time frame listed her father's illness

and passing, her husband's hospitalization and surgery, and her son's

illness as her stated reasons for requesting leave, but never cited

osteoarthritis or difficulties associated with having clubbed feet.

IR 62-72. She also mentioned her mother's stroke in her affidavit.

IR 84. Complainant was treated for a sprained left ankle on July 3, 1995.

IR 47-48. She requested and was given a light duty assignment pursuant

to being placed under medical restrictions authorizing sedentary work

only. IR 45. On August 3, 1995, she was cleared to return to full duty

work. IR 46. In her affidavit, complainant stated that on October 3,

1995, while still at home, she called her supervisor to ask for two more

days of leave without pay. She also stated that she tried to explain

her need for additional leave to the supervisor, and that the supervisor

informed her that she would be terminated. IR 84, 85A. The supervisor

responded that, when complainant called in to request leave, it was to

care for her mother. According to the supervisor, complainant never

mentioned that she was disabled or that she needed an accommodation.

Consequently, we find that the evidence is not sufficient to demonstrate

that complainant was discriminated against based on disability when

she was terminated.

To prevail on her reprisal claim, complainant must satisfy the three-part

test fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Complainant must initially establish a prima facie

case of reprisal. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Finally,

complainant must show that the agency's articulated reason for its

actions was pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502,

519 (1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351

(December 14, 1995). Assuming that complainant established a prima facie

case of reprisal, we find that the supervisor's decision to remove her

is supported by her own leave records. Those records corroborate the

supervisor's testimony as to the frequency and length of complainant's

absences during her probationary period. Complainant has not offered

any evidence which contradicts the testimony of the supervisor or the

manager, or which undermines their credibility as witnesses.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination or reprisal occurred.

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:

______________________________

Frances M. Hart,

Executive Officer,

Executive Secretariat

__09-13-00________________

Date

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.

2The 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.