01983080
02-02-2001
Gene Michaels, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Gene Michaels v. United States Postal Service
01983080
February 2, 2001
.
Gene Michaels,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01983080
Agency No. 4F-945-1047-96
Hearing No. 370-97-X2136
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Title VII, the
Age Discrimination in Employment Act (ADEA) and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges he was discriminated against on the bases of race (Caucasian),
sex, age (born 9/30/53), disability (ankle injury and stress), religion
(Jewish) and reprisal (prior EEO activity) when, on November 19, 1995,
he was removed from his position as a letter carrier for unacceptable
conduct/mistreatment of mail and delay of mail. For the reasons that
follow, the Commission AFFIRMS the agency's final decision.
The record reveals that complainant had been employed as a letter
carrier at the Concord Post Office in Concord, California. On January
14, 1996, complainant filed a formal EEO complaint claiming that he was
discriminated against as referenced above. At the conclusion of the
investigation, complainant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ). Upon
informing the parties of his intention to issue findings and conclusions
without a hearing and permitting an appropriate opportunity for response,
the AJ issued a Recommended Decision (RD) finding no discrimination.
See 29 C.F.R. � 1614.109(e). Thereafter, the agency adopted the RD
and issued a FAD, dated February 18, 1998, finding no discrimination.
It is from this agency decision that complainant now appeals. On appeal,
complainant contends that the AJ erred: in denying his motion to suppress
evidence, in denying his discovery request and in issuing a recommended
decision without a hearing.
The investigative record reveals that complainant was terminated for
misappropriating a �control package� of mail that had been entered into
his work flow as the result of an investigation by the Postal Inspectors
of reports of missing or stolen mail at the facility in question.
Complainant was also found to have delayed the mail by taking and reading
magazines that were to be delivered during his tour of duty. Complainant
admitted committing these violations when questioned by Postal Inspectors.
While complainant previously filed two EEO complaints, the complaints
were filed in 1988 and early 1991 (more than four years prior to the
incident which is the subject of this complaint) and involved different
postal officials.
In his RD, the AJ concluded that the complainant failed to establish a
prima facie case of discrimination on any of the claimed bases because
he failed to present a similarly situated comparison employee that was
treated more favorably. Additionally, with respect to the reprisal
claim, the AJ concluded that complainant failed to establish a nexus
between the prior EEO activity and the instant matter. With respect
to complainant's disability claim, the AJ viewed the evidence in the
light most favorable to the complainant and assumed that complainant
met the regulatory definition of a qualified person with a disability.
Nevertheless, the AJ reasoned that complainant had failed to show a
connection between any disability and his termination.
After a review of the record in its entirety, the Commission finds that
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. With particular
reference to complainant's age claim we note that complainant failed
to establish that age was a determinative factor in his termination;
that is, but for his age he would not have been terminated. See Loeb
v. Textron Inc., 600 F.2d 1003 (1st Cir. 1979); LaMontagne v. American
Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984); Bowens
v. United States Postal Service, EEOC Appeal No. 01933155 (July 7,
1994). Concerning complainant's disability claim, we agree with the AJ's
assessment as set forth above. In order to establish a prima facie case
of disparate treatment based on disability, complainant must show that:
(1) he meets the regulatory definition of a person with a disability,
29 C.F.R. � 1630.2(g); (2) he is a qualified person with a disability,
29 C.F.R. � 1630.2(m); and (3) he was subjected to an adverse employment
action under circumstances giving rise to an inference of discrimination,
i.e. complainant must make a plausible showing that there is a nexus
between the disabling condition and the disputed adverse action. See
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981);
Visage v. Department of the Air Force, EEOC Request No. 05940993
(July 10, 1995). Finally, assuming complainant established a prima
facie case of discrimination on any of the claimed bases, he failed to
present any evidence to rebut the agency's legitimate, nondiscriminatory
explanation that he was terminated because of his violation of agency
policy concerning the handling of the mail.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision, because the
Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_February 2, 2001_
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 29 C.F.R. Part 1614 in deciding the present appeal. We further
note that 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.
The ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of
disability discrimination. The aforementioned regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.