01976370
03-10-2000
Henry C. Garcia, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Henry C. Garcia v. United States Postal Service
01976370
March 10, 2000
Henry C. Garcia, )
Complainant, )
) Appeal No. 01976370
) Agency No. 4F-907-1053-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On August 21, 1997, Henry C. Garcia (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated June 17, 1997, 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., the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. and � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> The Commission hereby accepts
the appeal in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on race, color, religion, national origin, sex, age and
disability, when he was not returned to work and accommodated in his
medical restrictions.
BACKGROUND
Complainant was hired by the agency as a Part-Time Flexible Letter
Carrier in December 1990. During his probationary period, he sustained an
injury on the job (sprained left ankle). On March 6, 1991, complainant
received a Termination letter, effective March 8, 1991, for Failure to
Fulfill Position Requirements.<2> Complainant filed a request for EEO
counseling with the agency regarding his termination, and on June 14,
1991, he and the agency entered into a Settlement Agreement (SA). In
the SA, complainant agreed to withdraw his request for EEO counseling,
and in exchange he was "allowed to resign from the Postal Service in lieu
of termination." The SA specified that the notice of termination would
be purged from his file. Complainant's signature appears at the bottom
of the SA. On July, 31, 1991, the Postal Service had not received the
Resignation Form complainant was sent to sign, and in lieu of that form,
the EEO SA was placed in his file as evidence of complainant's intent
to resign from the Postal Service.
Complainant received Office of Workers' Compensation Programs (OWCP)
benefits for his left ankle injury beginning in 1991. In 1994, OWCP
apparently attempted to return complainant to work at the agency in a
modified duty position. A letter dated July 14, 1994, informed the agency
Injury Compensation department that there was no modified duty position
available at complainant's former work location. Complainant initiated
EEO Counseling on November 9, 1994. He filed a formal complaint on March
22, 1995, alleging discrimination on the bases of race (Mexican-American),
color (brown), religion (unspecified), national origin (Mexican), sex
(male), age (47) and disability (left ankle injury and back sprain)
when on October 6, 1994, he was not returned to work and accommodated
in his medical restrictions. The agency accepted the complaint for
investigation and processing. At the conclusion of the investigation, the
agency issued a copy of its investigative report and notified complainant
of his right to request an administrative hearing. Complainant timely
requested a hearing before a Commission Administrative Judge, but in
a letter dated March 24, 1997, he withdrew that request and asked that
the agency issue its final decision on the record. The agency issued
its FAD on June 17, 1997.
In its FAD, the agency found that the complainant had failed to
establish a prima facie case of race, color, religion, sex, age and
disability discrimination because he was unable to demonstrate that he
had been treated differently than any other comparative employee in a
similar situation. The agency's legitimate, nondiscriminatory reason
for refusing to return complainant to work was his termination from the
agency for Failure to Fulfill Position Requirements, and the subsequent
SA he signed changing his termination to a resignation. The FAD further
stated that complainant had failed to establish that the legitimate,
nondiscriminatory reason articulated by the agency for its decision was
a pretext for discrimination.
This appeal followed. On appeal, complainant argued that he had never
resigned from the agency. In support of that argument, complainant
claimed that the signature on the SA dated June 14, 1991, was not his
signature, and that he had not agreed to resign. Proof of that, he
argued, was evidenced by the fact that he had not returned the resignation
form sent to him by the agency for his signature. Based on his argument
that he had not resigned from the agency, he claimed that in 1994, he
was still an employee of the agency and that the agency was required to
give him priority consideration for reemployment or reassignment.
The agency argued that because complainant was no longer employed by
the agency, he had no entitlement to a postal position, and urged that
its FAD be affirmed.
ANALYSIS AND FINDINGS
Complainant must first establish a prima facie case of disparate
treatment disability discrimination by showing that: (1) he is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g);<3>
(2) he is a qualified individual with a disability pursuant to 29 C.F.R. �
1630.2(m); and (3) he was subjected to an adverse personnel action under
circumstances giving rise to an inference of disability discrimination.
See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities,
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. � 1630.2(i).
Complainant submitted insufficient medical documentation to support his
claim that his ankle injury or his spinal injury rose to the level of
a "disability" under the definition. He stated in his affidavit that
the major life function of "walking/standing" was impaired, but he did
not provide any statement from a physician which detailed his medical
condition or prognosis. Complainant's evidence of his disability
consisted of the OWCP forms, claims and correspondence that pertained
to the benefits he received for his ankle injury. Individuals are not
necessarily regarded as individuals with disabilities, as defined by
the Rehabilitation Act, merely because they have been provided with a
limited duty assignment because of an on-the-job injury or because they
have received an award from OWCP. The individual must still establish
that their medical condition meets the regulations set forth at 29
C.F.R. � 1630.2(g). See Waller v. Department of Defense, EEOC Request
No. 05940919 (April 6, 1995); Bailey v. U.S. Postal Service, EEOC Appeal
No. 01952545 (March 7, 1996). We find that there is insufficient evidence
in the record to show that complainant is substantially limited in a
major life activity and that complainant is not an "individual with a
disability" and therefore has failed to establish a prima facie case of
disability discrimination. In reaching the above determination, we have
examined complainant's disability claim in light of the Supreme Court's
recent decisions in Sutton v. United Airlines, Inc., 527 U.S. 471, 119
S.Ct. 2139 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516,
119 S.Ct. 2133 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555,
119 S.Ct. 2162 (1999); Cleveland v. Policy Management Systems Corp.,
526 U.S. 795, 119 S.Ct. 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624,
118 S.Ct. 2196 (1998).
We now turn to an examination of whether complainant was a victim of
discrimination based on his race, color, religion, national origin,
sex, or age. A claim of disparate treatment is examined under the
three-part analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (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). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claims of discrimination, the agency
presented evidence that complainant had been terminated from the
agency in March 1991, and that as part of an EEO SA with the agency
his termination had been changed into a resignation. Complainant's
termination had been for Failure to Fulfill Position Requirements, and
complainant's unsatisfactory performance as an employee was detailed in
the termination letter. As specified above, complainant had deficiencies
in his performance related to attendance and punctuality, following
directions, compliance with regulations and task performance. These
deficiencies were unrelated to complainant's ankle injury, except for
his failure to comply with regulations. In that instance, it was noted
that complainant's failure to follow the instruction not to "finger" mail
while walking up or down steps had caused him to trip while walking down
a set of porch stairs and twist his left ankle. We find that the agency
has articulated a legitimate, nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the complainant to demonstrate that the
agency's articulated reason was a pretext for discrimination. We find
that complainant has failed to do so. On appeal, complainant's argument
centered on his contention that he had not resigned from the agency,
and hence was still an agency employee. He attempted to argue that he
had not signed the SA which converted his termination into a resignation
and that the signature on the SA was not his. A careful examination,
however, of the signature on the SA reveals that, while it does not
exactly match complainant's signature on his appeal letter and brief,
it is nearly identical to complainant's signatures on his request for
EEO counseling, his formal complaint, various OWCP forms contained in
the record, and the signature on complainant's investigative affidavit.
We find that complainant had signed the SA with the intent to withdraw his
EEO request for counseling in exchange for a conversion of his termination
to a resignation. Aside from this argument, complainant does not attempt
to show how the agency's decision not to place him into a position was
motivated by discrimination. Therefore, the agency's determination
that complainant failed to establish that he was discriminated against
was correct.<4>
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
March 10, 2000
______________ __________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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
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 The Termination letter specified that complainant was deficient in the
following four areas: 1) Attendance/Punctuality; 2) Following Directions;
3) Compliance with Regulations (Safety, Dress/Footwear, Conduct); and 4)
Task Performance.
3 The October 1992 amendments to the Rehabilitation Act provide that the
standards used to determine whether Section 501 of the Rehabilitation
Act has been violated in a complaint alleging non-affirmative action
employment discrimination shall be the standards applied under Title
I of the Americans With Disabilities Act (ADA). 29 U.S.C. � 791(g).
The regulations at 29 C.F.R. � 1630 implement the equal employment
provisions of the ADA.
4 We find that the agency erred to the extent that it found that
complainant had not established a prima facie case of race, color,
religion, national origin, sex, or age discrimination because he was
unable to demonstrate that he was treated less favorably than any
similarly situated comparative employee. We note that to establish
a prima facie case, complainant must only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. Furnco, 438 U.S. at 576. It is not necessary for
the complainant to rely strictly on comparative evidence in order to
establish an inference of discriminatory motivation necessary to support
a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).