01991344
03-15-2002
Harold Cuff Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Harold Cuff Jr. v. United States Postal Service
01991258 & 01991344
3/15/02
.
Harold Cuff Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal Nos. 01991258 & 01991344
Agency No. 1C-151-0090-97 & 1C-151-0033-97
Hearing No. 170-98-8218X & 170-98-8099X
DECISION
Harold Cuff Jr. (complainant) timely initiated two separate appeals
of final agency decisions (FAD) concerning his complaints of unlawful
employment discrimination on the bases of race (Black), age (DOB:
7/14/31), and physical disability (respiratory tract infection, injured
right arm and cold), and reprisal for prior EEO activity in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. and the Rehabilitation Act
of 1973, (Rehab. Act) as amended, 29 U.S.C. � 791, et seq. The appeal
is accepted in accordance with 29 C.F.R. �1614.405.<1> For the following
reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
Complaint Designated by Appeal No. 01991258
The issues on appeal are whether complainant was subjected to
discrimination on the bases of race (Black), age (DOB: 7/14/31), and
disability (respiratory tract infection and cold) when:
beginning March 1, 1997 through May 1, 1997, another employee was offered
eight hours of overtime each week on his layoff day and he was offered
none; and
on March 8, 1997, he was issued a Letter of Warning for using sick leave
in conjunction with his layoff days.
Complaint Designated by Appeal No. 01991344
The issues on appeal are whether complainant was subjected to
discrimination on the bases of race (Black), reprisal for prior EEO
activity and disability (injured right arm) when:
on November 1, 1996, he received a letter from the agency terminating
his light duty assignment; and
beginning March 1, 1997 through May 24, 1997, another employee was
offered eight hours of overtime each week on his layoff day and he was
offered none.
BACKGROUND
Complaint Designated by Appeal No. 01991258
The record reveals that at the time complainant filed the instant
complaint, he was employed as an Expediter PS-06 at the agency's
General Mail Facility in Pittsburgh, Pennsylvania. In his affidavit,
complainant attested that during the aforementioned period, a co-worker
was offered eight hours of overtime each week while he was offered none.
Further, complainant averred that in August and September of 1996, he
developed bronchitis and then a respiratory tract infection which led
his doctor to instruct him not to return to work until his condition
improved. Similarly, complainant states that on December 23, 1996, he
developed a chronic bronchial condition, which caused him to be absent.
Complainant states that he experienced these illnesses, which required
him to go to the doctors' office more than his younger co-workers.
Consequently, complainant states that the March 8, 1997, Letter of
Warning (LOW) was too harsh a response by management to his illness,
and he requested that it be rescinded.
In response to complainant's claim of discriminatory treatment made
in Issue #1, the agency's Manager of Distribution Operation (MDO)
(White/chronic bronchitis/49 years of age when she gave her statement
to the EEO Investigator), testified that on Thursday and Friday, which
are complainant's layoff days, there was full coverage and no need to
assign overtime. Additionally, the MDO noted that one of the employees
cited as a comparative employee did not work in her unit and the other
comparative employee received overtime during the pertinent time period
because his layoff day was on Saturday.
Responding to complainant's claim of discriminatory treatment made in
Issue #2, complainant's Immediate Supervisor (hereafter ASOM) (White/no
disabilities/54 years of age when he gave her statement to the EEO
Investigator) testified that when complainant bidded into his section
in February of 1997, he was told by complainant's former supervisor
that complainant was not regular in attendance and that he was due a
LOW on his next �call off.� Despite giving complainant a discussion on
his leave usage, the ASOM averred that complainant made a call off on
March 4th and March 5th. These absences were taken in conjunction to
complainant's layoff days. Consequently, the ASOM stated that he gave
complainant the March 8, 1997 LOW.
Complaint Designated by Appeal No. 01991344
In his other complaint dated April 25, 1997, complainant alleged in
reference to Issue #3 that as a result of an injury to his right arm, he
was on family medical leave from April 21, 1996, until August 1, 1996,
when he returned to work on a light duty status. On October 23, 1996,
complainant stated that the agency told him that after November 20, 1996,
no more temporary light duty requests will be granted. Subsequently,
complainant received a Notice of Discontinuance dated November 22,
1996, terminating his light duty assignment. In his statement to the
Investigator, complainant averred that the termination of his temporary
light duty assignment was premature and did not allow enough time for his
arm to heal. Complainant also gave the names of two comparative employees
who were purportedly on temporary light duty assignments for much longer
periods of time without having received a Discontinuance Notice.
With respect to Issue #4, complainant essentially raised the same
arguments that he raised in the complaint identified by Appeal
No. 01991258. Additionally, complainant noted that even though he was
a new Expediter, at the time, he was still senior to the comparative
employee, and consequently, he should have been given the opportunity to
work overtime before such an offer was made to the comparative employee.
In responding to the allegation of discrimination raised by complainant in
Issue #3, the agency's Senior Manager of Distribution Operations (SMDO)
(white/no disabilities/unspecified prior EEO activity ) stated that
complainant had been applying for light duty for years with no apparent
improvement of his condition. According to the SMDO, if complainant
had a permanent limitation, he should have applied for permanent light
duty in accordance with the agreement between the agency and the union.
Unlike complainant, the SMDO stated that one of the comparative employees
cited by him had work restrictions, but was nonetheless able to perform
the essential functions of his position. Responding to Issue #4 the ASOM,
who testified in the other complaint designated by Appeal No. 01991258,
reiterated the testimony given earlier on this matter. Essentially,
he noted that complainant's layoff days were not the same as the
comparative employee.
At the conclusion of the investigation, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). On or around May 15, 1998, the agency
submitted a motion for a findings and conclusions without a hearing.
On August 10, 1998, after considering the motions and arguments of
both parties, the AJ informed them that there were no material facts in
dispute and that he would decide the case based on the record without
a hearing in both cases.
Complaint Designated by Appeal No. 01991258
In his decision, the AJ held that complainant was not subjected to
discrimination based on his race or disability. Specifically, the AJ
found that complainant did not establish a prima facie case of race, age,
or disability discrimination with respect to both of the accepted issues.
In support of his ruling, the AJ found with respect to the overtime
issue that complainant had submitted no evidence to show that others
outside of his protected group were treated in a more favorable manner.
The AJ also found that the comparative employee cited by complainant
was not an appropriate comparative because he had different off days
and thus different opportunities for overtime than did complainant.
With respect to the LOW issue, the AJ found that complainant failed
to identify any similarly situated employees outside of his protected
group who were treated more favorably. In this regard, the AJ noted
that the record evidence established that a number of employees outside
of complainant's protected groups (i.e., race and age) received LOWs
due to their attendance.
Complaint Designated by Appeal No. 01991344
In ruling on this case, the AJ found that complainant failed to establish
a prima facie case of disability discrimination. Specifically, the AJ
noted that tendinitis of the elbow is a transitory condition and is not
considered a disability under the Rehabilitation Act. Similarly, in the
second case, the AJ found that complainant failed to establish a prima
facie case of reprisal because neither of the responsible management
officials knew of complainant's prior EEO activity. Moreover, the AJ
found that complainant failed to establish a prima facie case of race
discrimination with respect to Issue #3 because he failed to cite any
similarly situated employees who were treated more favorably than he.
With respect to Issue #4, the AJ noted that despite complainant's
contradictory testimony he did receive 35 hours of overtime during
the pertinent time period. The AJ also reiterated his finding that
complainant failed to establish a prima facie case with respect to
this issue because he failed to cite any comparative employees who
received more favorable treatment. In this regard, the AJ noted that
the comparative employee cited by complainant with respect to this issue
was not a similarly situated employee because he had a different layoff
day than did the complainant.
In separate final agency decisions dated October 14, 1998, the agency
adopted the decisions of the AJ in both cases.
CONTENTIONS ON APPEAL
Neither complainant nor the agency raised any new contentions or arguments
on appeal.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court does not
sit as a fact finder. Id. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue
of fact is "genuine" if the evidence is such that a reasonable fact
finder could find in favor of the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D
103, 105 (1st Cir. 1988). A fact is "material" if it has the potential
to affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the case at hand, we find that the AJ acted properly when he issued
a summary finding without holding a hearing given that the case was
fully investigated and there exists no genuine issue of material fact.
With respect to complainant's claim of disability discrimination, it is
clear that he did not fall within the definition of a disabled employee
as defined by the governing EEOC regulations. In that regard, we note
that in order to establish a prima facie case of discrimination based
on disability, complainant must produce sufficient evidence to show that
(1) he has a physical or mental impairment that substantially limits one
or more of his major life activities or that he has a record of such an
impairment or is regarded as having such an impairment, for purposes of
the Rehabilitation Act, as defined in 29 C.F.R. � 1630.2(g); (2) that he
is a �qualified individual with a disability,� in that he is qualified
for, and can perform, the essential functions of the position he holds
or desires with or without reasonable accommodation, as specified in 29
C.F.R. � 1630.2(m); and (3) that he received an adverse employment action
as a result of his disability.<2> Complainant also must demonstrate
a causal relationship between his disabling condition and the agency's
reason for the adverse action. See Lawson v. CSX Transportation, Inc.,
245 F.3d 916 (7th Cir. 2001).
Based on our review of the record, the Commission finds that complainant
did not submit sufficient evidence to show that he is a disabled employee
in neither case. The only medical documentation on record for Complaint
#1 shows that complainant was prescribed amoxcillin and pseudoephedrine
for a respiratory tract infection. See Report of Investigation (ROI)
Complaint #1 pp. 30-2. In Complaint #2, there is a medical certificate
dated December 11, 1996, indicating that complainant had tendinitis in
his right elbow, which would require him to undergo physical therapy for
four weeks. There is no indication that complainant's illness had any
substantial effect on any of his major life activities or that it was
permanent in nature. In fact, complainant's physician released him to
return to work after two days of rest. See Evans v. Dallas, 861 F.2d 846
(5th Cir. 1988) (impairment does not include transitory illnesses which
have no permanent effect on a person's health).
In the case at hand, we find that the AJ properly held that a hearing
was not necessary due to the fact that complainant failed to establish
a prima facie case of discrimination. Moreover, the Commission finds
that even if complainant had succeeded in establishing a prima facie
case of discrimination, there exists no genuine issue of material fact
because he failed to show that the reasons articulated by the agency
were pretext for discrimination.
In Appeal No. 01991258, the agency officials stated that on Thursday and
Friday, which were complainant's layoff days, there was full coverage and
no need to assign overtime. One of the employees cited as a comparative
employee did not work in complainant's Unit and the other comparative
employee received overtime during the pertinent time period because
his layoff day was on Saturday. With respect to the LOW, the ASOM
averred that complainant made a call off on March 4th and March 5th.
These absences were taken in conjunction to complainant's layoff days.
The ASOM stated that he gave complainant the March 8, 1997 LOW, because
complainant had a pattern of irregular attendance.<3> With respect to the
complaint designated by Appeal No. 01991344, the Commission finds that
the agency officials averred that consistent with the Labor agreement
between it and the Union, complainant needed to apply for long term
light duty assignment or bid on another craft if his identified medical
condition , although not substantial, prevented him from performing
the essential functions of his position for an extended period of time.
The agency distinguished complainant from the comparative employees by
noting that one of them was on light duty, but was performing all of the
essential functions of his position and, then by noting that the other
employee did not have a record of been on light duty.
The agency articulated legitimate nondiscriminatory reasons for
the challenged personnel actions, complainant must demonstrate that
the reasons are pretextual and/or that the agency was motivated by
discriminatory animus in taking the challenged action. Complainant
failed to present evidence to refute the agency's articulated reasons
with respect to either complaint. Accordingly, we find that he failed
to show pretext.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws in this case. We discern
no reason to disturb the AJ's decision.
CONCLUSION
The agency's finding of no discrimination with respect to the challenged
actions is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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:
______________________________
Frances M. Hart,
Executive Officer
Executive Secretariat
3/15/02
__________________
Date
1 Pursuant to the governing EEOC Regulations,
the Commission may, in its discretion consolidate two or more complaints
of discrimination filed by the same complainant which consist of
substantially similar allegations. See 29 C.F.R. �1614.606. In the case
at hand, the Commission finds that complainant raised substantially the
same allegations in two separate complaints. Consequently, these two
complaints will be consolidated in this appellate decision.
2 As a threshold matter, complainant must establish that he is a
�qualified individual with a disability� within the meaning of the
Rehabilitation Act. An �individual with disability� is a person who
has, has a record of, or is regarded as having a physical or mental
impairment which substantially limits one or more of that person's major
life activities, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See, 29 C.F.R. � 1630.2(j).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j). The individual's ability
to perform a major life activity must be restricted as compared to
the ability of the average person in the general population to perform
the activity. Id.
3 In a seven month period covering August 26, 1996, through March 4,
1997, complainant called in sick on four occasions to take days off in
conjunction with his layoff day.