Guillermo A. Rose, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01990030 (E.E.O.C. Apr. 11, 2000)

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.