01971335
06-29-2000
Dennis H. Mink, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis H. Mink v. United States Postal Service
01971335
June 29, 2000
Dennis H. Mink, )
Complainant, )
) Appeal No. 01971335
v. ) Agency No. 1-H-381-1067-85
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency concerning his allegation that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.<0>
The appeal is accepted by the Commission in accordance with 64 Fed. Reg.
37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
the complainant based on race (Caucasian), color (white), mental
disability (mental disorder), and retaliation (prior EEO activity)
when: (1) on March 21, 1995, the 204-B supervisor refused to notify the
complainant's supervisor that he had called in to report the status of
his medical condition; (2) on April 3, 1995, the 204-B supervisor did
not accept the complainant's medical documentation and tried to force
him to sign a PS Form 3971 that was incorrect; and (3) on April 4, 1995,
the 204-B supervisor allegedly did not let the complainant clock in,
thereby forcing him to take emergency annual leave due to stress.
BACKGROUND
The complainant filed a formal complaint in June 1995 in which he
raised the issues identified above. Following an investigation, the
complainant did not request an administrative hearing and the agency
issued a final decision in October 1996 finding no discrimination.
It is from this decision that the complainant now appeals.
During the period in question, the complainant was employed as a
Mailhandler at the agency's facility (the Facility) in Memphis, Tennessee.
On or about March 21, 1995, the complainant, who was on sick leave, called
the Facility to report his condition to his supervisor. The complainant
states that the 204-B supervisor (the Responsible Official, RO) answered
the phone but refused to take a message, telling the complainant to
call the Manager, Distribution Operations (MDO). According to the
complainant, he called the MDO, who told him that his call was not
necessary. In response, the RO testified that the complainant did not
follow the proper procedure in calling in, noting that he was supposed
to speak to the call-in supervisor so that the call could be recorded.
The complainant returned to work on April 3, 1995, and submitted medical
documentation in support of his absence. The complainant states that the
RO subsequently approached him and told him that the documentation he
submitted was unacceptable and that, without more documentation saying
he was released to return to work, she would not allow him to return
the following day. The complainant states that the RO then tried to
force him to sign an incorrect absence (3971) slip. The RO stated
that she did not accept the submitted documentation because she could
not understand it. The RO acknowledged that this had been a mistake,
but noted that she had apologized to the complainant for the incident.
With regard to the allegedly incorrect 3971, the RO stated that she was
unaware that there was any error, and we note that the complainant has
not identified what was allegedly wrong with the 3971.
The complainant states that, when he reported for work on April 4, 1995,
the RO would not let him clock-in, allegedly because he still had not
provided adequate documentation to return to work. The complainant states
that, because of the RO's behavior, he was forced to take seven hours of
emergency annual leave due to stress. Conversely, the RO testified that
she did not prevent the complainant from clocking in and that she was not
even at the time clock when he arrived for work. The RO states that, when
she saw the complainant, she asked him for his "employee health papers."
ANALYSIS AND FINDINGS
Race, Color, and Reprisal
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. The complainant has
the initial burden of establishing a prima facie case of discrimination.
If the complainant meets this burden, then the burden shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. The complainant must then prove, by a prepon-derance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was a pretext for discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
The Commission finds insufficient evidence to conclude that the
complainant has established a prima facie case of race or color
discrimination. Not only has he failed to demonstrate that he was treated
differently than a similarly situated nonmember of his protected groups,
but he has offered no other evidence which supports an inference of
discrimination. See O'Connor v. Consolidated Coin Caters Corp., 517
U.S. 308 (1996).
The Commission does find, however, that the complainant can establish
a prima facie case based on reprisal. Specifically, the record reveals
that the complainant filed a formal complaint in December 1995 in which
he named the RO as the responsible official. Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.),
aff'd 545 F.2d 222 (1st Cir. 1976). Although the RO testified that she
was not aware of the complainant's prior EEO activity, we note that her
testimony on this question was ambiguous.<0>
Now that the complainant has established a prima facie case, the agency
has the burden of articulating legitimate, nondiscriminatory reasons
for the challenged actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). The Commission finds, based on the statements
provided by the RO, that the agency has met this burden.
At this point, the complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
Regarding Issue 1, i.e., the RO not giving a message to the complainant's
supervisor, the complainant has offered nothing which establishes that
the RO's articulated reason is pretextual. With regard to Issues 2 and
3, not only is there conflicting evidence concerning what transpired
between the complainant and the RO on April 3 and 4, 1995, but it is
not apparent how the complainant was harmed by the RO's alleged actions.
Although the RO acknowledged that she made a mistake in not accepting
the complainant's medical documentation, this did not prevent him from
working a full day on April 3. Furthermore, although the complainant
states that the RO prevented him from clocking in the following day,
the RO denied this. Although it is not apparent whose version is
accurate, the complainant's time records for that date reveal that
he worked from 2:00 to 3:00 (the first hour of his shift) prior to
taking annual leave. This suggests that he clocked in for one hour.
Based on the foregoing, the Commission finds the complainant has not
met his burden of establishing that he was retaliated against.
Disability
The burdens of proof required in a disparate treatment claim brought
pursuant to the Rehabilitation Act are modeled after those used in
Title VII law. See Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th
Cir. 1981). To establish a prima facie case of disability discrimination,
the complainant must demonstrate that: 1) he is an "individual with a
disability" as defined in 29 C.F.R. �1630.2(g);<0> 2) he is a "qualified
individual with a disability" as defined in 29 C.F.R. �1630.2(m); and
(3) the agency took an adverse action against him. Id. The complainant
must also demonstrate a causal relationship between his disability and
the adverse action.
An "individual with a disability" is defined as someone who: (1)
has a physical or mental impairment which substantially limits one or
more of such person's 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)(1)-(3). "Major life activities" include functions
such as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i).
In the FAD, the agency found that the complainant was not an "individual
with a disability" because he had not demonstrated that his mental
condition substantially limits any of his major life activities.
In considering this question, we note that the record contains medical
reports from 1994 and 1995 indicating that the complainant has bi-polar
disorder. Neither of these reports indicates, however, the symptoms
associated with this impairment and/or whether it substantially limits a
major life activity. Similarly, although one of these reports diagnoses
the complainant with "alcohol dependence," there is no indication as
to whether it substantially limits a major life activity. Based on
the foregoing, the Commission concludes that the record is not fully
developed on the question of whether the complainant's impairment
substantially limits a major life activity. Even assuming, however,
that the complainant could establish that he is an "individual with a
disability," he has not demonstrated that there is a connection between
his alleged disability and the challenged actions. Accordingly, the
Commission finds the complainant has not established that the agency
discriminated against him based on disability.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find the complainant
has not established that the agency discriminated against him as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__06-29-00____ _____________________
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
01 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.
02 Although the RO stated at one point that she was unaware of the
complainant's EEO activity, she then stated, when asked whether she
was aware of the complainant's disability, "I've never known about
[the complainant's] medical condition except through EEO."
03 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.
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.