Douglas Inselmann, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 1, 2009
0120070211 (E.E.O.C. May. 1, 2009)

0120070211

05-01-2009

Douglas Inselmann, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Douglas Inselmann,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070211

Hearing No. 360-2006-00070X

Agency No. 4G-780-0160-05

DECISION

On October 6, 2006, complainant filed an appeal from the agency's

September 1, 2006 notice of final action concerning his equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a casual letter carrier at the agency's Frank Tejada Station in San

Antonio, Texas. Prior to his appointment as a casual letter carrier

at the Frank Tejada Station, complainant had worked for the agency as a

casual employee in the positions of mail handler, custodian and letter

carrier. Complainant's first day of employment at the Frank Tejada

Station was March 24, 2005. Complainant was assigned to work with

another mail carrier to undergo training on March 24 - March 25, 2005.

On July 13, 2005, complainant filed an EEO complaint alleging that he was

discriminated against on the basis of disability (cluster headaches) when:

on March 26, 2005, complainant was terminated from his position as a

casual letter carrier.1 The notice of termination shows that complainant

was terminated for inability to perform the duties of the position.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing and the AJ held a hearing on June 1, 2006. The AJ

issued a decision on August 6, 2006, finding complainant failed to prove

that he was subjected to discrimination on the basis of disability.

In her decision, the AJ determined complainant was not forthright

in disclosing his medical condition when completing forms during the

application process and immediately after being hired. The AJ found

that although complainant had experienced cluster headaches previously,

had a diagnosed medical condition, and was aware of problems caused

by his condition, he failed to fully disclose his medical condition

to the agency. Complainant's failure to fully provide the required

information caused the AJ to "question his credibility in his claim

of discrimination."

The AJ noted that complainant testified on his first day of employment,

he was required to fill out an employee emergency contact form on which

he listed his medical condition and the medication he was taking. 2

Complainant stated that he discussed his employee information and

emergency contact information with Person A, a Delivery Supervisor, and

Person A told him, "Okay. We can work with you." The AJ found it did not

make sense that upon first learning of complainant's medical condition,

Person A would initially, according to complainant's testimony, assure

complainant that he would work with him and then two days latter tell

complainant he could not deliver mail.

The AJ found complainant was reluctant to disclose all information

pertinent to the job when he was initially offered the job and when

he was subsequently asked to explain in detail his medical condition.

The AJ noted that complainant did not provide any explanation to

management about his condition or limitations until after he was advised

by a coworker that he should put management on notice about it. The AJ

found once complainant was sent out to deliver a route on his own without

assistance after training, he then raised the issue of not being able

to deliver the mail in the heat. The AJ found there was no evidence

complainant requested an accommodation to perform the job at issue and

noted complainant himself contended no accommodation was needed.

The AJ noted the agency took the position that complainant was the one

who came forward and said he could not perform the job due to the cluster

headaches that were brought on by excessive heat. Based on complainant's

demeanor at the hearing, the AJ found complainant was not "assertive

enough to have explained that in fact he had performed the job [at issue]

before, to explain that it had not been a problem, or to fully explain

the circumstances relating to his medical condition." The AJ recognized

that Person A testified that there were other employees who suffered from

medical conditions, such as diabetes, who were also required to inject

themselves with medicine and that there was no problem with any of those

employees except when they failed to properly dispose of their needles.

The AJ also noted management's testimony showed that the agency was

short-staffed and would be reluctant to give up staff assigned to them.

Moreover, the AJ found that instead of responding to a request for more

information, complainant made the decision that the agency had sufficient

medical information about his medical condition based on his previously

submitted FMLA application. Thus, the AJ concluded that the agency

established a legitimate, non-discriminatory reason for its action which

complainant failed to show was a pretext for prohibited discrimination.

The agency subsequently issued a notice of final action on September

1, 2006. The agency fully implemented the AJ's finding that complainant

failed to prove that he was subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

We find that substantial evidence supports the AJ's finding that

complainant failed to prove he was subjected to discrimination as

alleged. Specifically, we find that the agency permitted complainant

to perform carrier duties his first two days on the job until on the

third day complainant advised management he could not work in the heat.

Thereafter, Supervisor A advised complainant to go to the personnel

office to tell them about his medical condition and to see if there was

another job available inside away from the heat. The Casual Coordinator

testified that complainant contacted him the next week but did not tell

him that he had a medical condition and only asked if there was any

other work available. The causal coordinator testified that at that

the time there was no other work available aside from carrier work.

Complainant did not show that the agency's actions were a pretext to

mask prohibited discrimination. Further, we find complainant has not

shown that he was denied a reasonable accommodation.3

Accordingly, the agency's notice of final action is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 77960,

Washington, DC 20013. 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 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 1, 2009

__________________

Date

1 The record reveals that during the relevant time complainant suffered

from cluster headaches which he treated with Imitrex and Inderal.

Complainant carried the Imitrex in a pack on his hip and took it via

a syringe when he felt the cluster headaches beginning. Complainant

stated that by taking Imitrex, the pain from the headache would last

10 to 15 minutes (instead of the pain lasting up to 90 minutes without

the medication). Further, complainant stated that during the relevant

time he took Inderal twice a day to control his headaches.

2 Although the agency could not produce the employee emergency contact

form completed by complainant during his employment, the record contained

a blank copy of the form. Further, Person A indicated that although

he could not locate the form completed by complainant, he had no reason

to disbelieve that complainant had indicated on the form that he had a

medical condition regarding cluster headaches.

3 We do not address in this decision whether complainant is a qualified

individual with a disability.

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0120070211

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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