01990030
04-11-2000
Guillermo A. Rose, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Guillermo A. Rose v. United States Postal Service
01990030
April 11, 2000
Guillermo A. Rose, )
Complainant, )
) Appeal No. 01990030
) Agency No. 1H332000197
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> and �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq .<2> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that he was discriminated against on the basis of
mental disability and/or reprisal when:
(1) on August 23, 1996 he was issued a Letter of Warning (LOW) for
failure to be in regular attendance, and
(2) on August 1, 1996 he was mandated to submit to psychiatric medical
updates every forty-five (45) days.
The record reveals that during the relevant time, complainant was employed
as a custodian (PS-03) at the agency's Ft. Lauderdale Processing and
Distribution Center. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on December 4, 1996. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to make a prima
facie case of disparate treatment or establish a discriminatory motive
based on mental disability and/or retaliation.
ANALYSIS AND FINDINGS
We note that complainant's claims of retaliation and discrimination are
disparate treatment claims. Historically, to prove disparate treatment,
a complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Where the agency articulates legitimate and
nondiscriminatory reasons for its actions, we can dispense with the prima
facie inquiry and proceed to the ultimate stage of the analysis, i.e.,
whether the complainant has proven by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997).
As to complainant's claim of discrimination and/or retaliation when on
or about August 1, 1996, complainant was mandated to submit psychiatric
medical updates every 45 days, the Commission finds that complainant
failed to present evidence that more likely than not, that the agency's
articulated reasons for its actions were a pretext for discrimination.
The agency has established a legitimate, nondiscriminatory reason for
requesting medical updates every 45 days, namely its desire to accommodate
complainant's mental impairment.
In our previous decision, Guillermo v. United States Postal Service, EEOC
Request No. 01990030 (December 20, 1994), we found that complainant was a
qualified individual with a disability. At that time, an agency medical
officer found that complainant's mental impairment, Post Traumatic Stress
Disorder, was in remission. In Guillermo, we ordered an accommodation
that specifically contemplated complainant's follow-up treatment with
periodic medical updates every 30-60 days.
We note that prior to the agency's most recent request for psychiatric
updates every 45 days, the complainant had been placed on an emergency
suspension, was escorted from his duty location, and was removed from
the facility after threatening his supervisor. Under these facts, the
complainant has failed to establish that the agency's requests for the
subject documentation are violative of the Rehabilitation Act and/or
retaliatory. However, we take this opportunity to note that our previous
order in Guillermo does not provide the agency with infinite authority
to require that complainant provide medical documentation. Our guidance
indicates that reasonable documentation of a disabling condition may
be required, but "[r]easonable documentation means that the employer
may require only the documentation that is needed to establish that a
person has an ADA disability, and that the disability necessitates a
reasonable accommodation." See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No.-915.002,(March 1, 1999).
As to complainant's claim of discrimination and/or retaliation when on
or about August 23, 1996 he was issued a Letter of Warning for failure
to be regular in attendance, the Commission finds that complainant
failed to present evidence that more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
Complainant indicates that the absences which resulted in the LOW should
be excused and be considered medical leave. The agency has established
a legitimate and nondiscriminatory reason for issuing the LOW, namely
complainant's excessive absences from work. The record reveals that
comparison employees, who were absent from work for comparable lengths
of time, were also issued LOWs. Complainant argues that his absences
were due to his disability, but our review of the record reveals that
complainant never indicated that his absences were disability related.
We reviewed the affidavit of the official responsible for calculating
complainant's leave. The affiant suggests that complainant did not
request disability related leave. Another agency witness testified
through affidavit that if complainant had delivered medical documentation
to the agency for the absences in question, the LOW would be rescinded.
We find these affidavits persuasive and creditable. Complainant fails to
establish that the agency's stated reasons were pretexts for retaliation
and/or discrimination.
Accordingly, we AFFIRM the FAD.
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).
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:
4/11/2000 ____________________________
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 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.
2 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.