01991005
02-29-2000
Franklin A. Calvo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Franklin A. Calvo v. United States Postal Service
01991005
February 29, 2000
Franklin A. Calvo, )
Complainant, )
)
v. )
) Appeal No. 01991005
William J. Henderson, ) Agency No. 4-H-370-0040-98
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of mental disability (major depressive reaction), in violation of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant alleges he was discriminated against when on October 23,
1997, he received notice that he would not be hired by the agency.
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
we AFFIRM the agency's FAD.
The record reveals that during the relevant time, complainant applied
for a position at the agency's Dalton, Georgia postal facility, and
was listed fourth on the applicant register. Subsequently, an agency
Human Resources Specialist (HRS) reviewed complainant's application for
employment and determined that at a recent prior employer, complainant
resigned prior to being terminated for cause for violating a company
policy. This prior employer sent HRS a reference noting that it would
not recommend him for hire. HRS then sent complainant a letter dated
September 22, 1997 stating that he was not qualified for prehire, and
that he could request reconsideration with the facility Human Resources
Manager (HRM). Complainant responded to the above-referenced letter,
stating that he believed that his prior termination/resignation was
prompted by his former employer's discrimination due to of his status as
a disabled veteran.<2> After reviewing complainant's explanation for his
prior termination/resignation, the HRM sent complainant a letter dated
October 23, 1997 stating that after reviewing complainant's request,
HRM was disqualifying him from employment from the Postal Service due to
his termination from a prior employer in September of 1996. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint on January 12, 1998. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD found that complainant failed to establish a prima facie case
of disability discrimination because he did not demonstrate that he was
an individual with a disability, or was regarded as or had a record of a
disability, as defined by the Rehabilitation Act. The agency also found,
in any event, that the agency articulated a legitimate, nondiscriminatory
reason for its action, namely, that complainant's inability to meet the
legitimate work expectations of a prior employer demonstrated to the
agency that he was not suitable for employment pursuant to the agency
handbook (EL-311). The FAD then found that complainant presented
insufficient evidence to demonstrate that the agency's reason was a
pretext for discrimination. On appeal, complainant contends, among other
reasons, that the agency discriminated against him because his separation
from his prior employer was discriminatory. The agency requests that
we affirm its FAD.
After a careful review of the record based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981)<3>, we agree with the agency's
conclusion that complainant failed to establish that he was a victim
of discrimination. In reaching this conclusion, we first note that
merely because an individual has a service-related "disability" does
not automatically mean that the individual is disabled for purposes of
the Rehabilitation Act. See Bailey v. United States Postal Service,
EEOC Appeal No. 01952545 (March 7, 1996). However, even assuming,
arguendo, that complainant established a prima facie case of disability
discrimination, we agree with the agency that it articulated a legitimate,
nondiscriminatory reason for its action, and that complainant presented
insufficient evidence to demonstrate that more likely than not, the
agency's reasons were a pretext for disability discrimination. The
Commission notes that the documents and statements in the investigative
file support the FAD's conclusion, and complainant presents no evidence
to demonstrate that discriminatory animus motivated either the actions
of HRS or HRM.<4> Therefore, after a careful review of the record,
including complainant's contentions on appeal, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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:
February 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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 A closer review of these records reveals that complainant's former
employer apparently terminated complainant because he claimed a 30%
disabled veteran status on a medical questionnaire when he had not
formerly received such a rating from the Department of Veterans
Affairs. See Investigative File at exhibit 5, page 2.
3 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.
4 The Commission notes that the agency's Personnel Handbook (EL-311)
provides in Section 312.2, Disqualification, that an applicant may
be disqualified for dismissal from prior employment for cause. See
Investigative File, exhibit 8, page 2.