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.