01990709
02-15-2000
Jaime Medina, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Region), Agency.
Jaime Medina, )
Complainant, )
) Appeal No. 01990709
v. ) Agency No. 4A-110-0084-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of age (d.o.b 5/17/51), physical disability (diabetic)
and retaliation (prior EEO activity), 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 (ADEA), as amended, 29
U.S.C. �621 et seq.; and the Rehabilitation Act of 1973,<1> as amended, 29
U.S.C. � 791, et seq.<2> Complainant alleges he was discriminated against
when, on February 14, 1997, he was issued a fourteen (14) day suspension
effective April 5, 1997, for an incident which occurred on January 27,
1997. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as a PS-5 Letter Carrier at the agency's Steinway Station Post Office in
Astoria, New York (�facility�). The Manager, Customer Services (MCS)
at the facility alleged that complainant was issued the fourteen (14)
day suspension when he was given one hour of overtime in addition to his
regular tour of duty to complete his assignment, but nevertheless returned
to the facility with about five feet of undelivered mail. The MCS stated
that the suspension for Failure to Follow Instructions/Delay of Mail was
issued for fourteen (14) days, as the agency has a progressive discipline
rule and complainant had previously received a suspension and a letter of
warning in 1996.<3> Complainant claims that he received the suspension
due to the above-stated bases, and not for the agency's stated reasons.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on May 7, 1997. At the
conclusion of the investigation, complainant requested that the agency
issue a final agency decision without a hearing.
The FAD concluded that complainant failed to establish a prima facie
case of discrimination on the above-stated bases, because he presented
no evidence that similarly situated individuals not in his protected
classes were treated differently under similar circumstances. The FAD
further found that even assuming that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for issuing the suspension, namely, that
on the date at issue, complainant was granted an hour of overtime in
addition to his regular tour of duty to complete his route and yet
returned to the station with five feet of undelivered mail. The FAD
further found that complainant failed to establish a prima facie case of
discrimination under the Rehabilitation Act, as it was unclear whether
his diabetic condition substantially limited any major life activities.
The FAD also noted that the record failed to demonstrate whether the
agency had knowledge of complainant's diabetes prior to the issuance
of the suspension. Finally, the FAD found that complainant failed to
prove that but for his prior EEO activity, he would not have received
the suspension. On appeal, complainant has made no new contentions.
The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979)(applying McDonnell Douglas to age cases); Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981)(applying McDonnell
Douglas to disability cases), and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant
failed to establish a prima facie case of age or physical disability
discrimination because there were no similarly situated employees not
in complainant's protected classes who were treated differently under
similar circumstances. In addition, the Commission finds that, in any
event, complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its issuance of the suspension were
a pretext for discrimination. Rather, the evidence establishes that
complainant had previously received a letter of warning for failure
to perform his duties, and the agency's progressive discipline policy
warranted a suspension for the instant incident. We further agree with
the FAD's finding that complainant failed to establish entitlement to
coverage under the Rehabilitation Act. In reaching this conclusion,
we find that complainant failed to present evidence indicating that
his diabetic condition substantially limited him from performing
one or more major life activities, and complainant in fact conceded
that his condition did not affect any major life activities. See 29
C.F.R. �1630.2(j); Investigative Report, at Exhibit 1.
Regarding the FAD's reprisal finding, we note that the FAD incorrectly
required complainant to prove that �but for� his prior EEO activity, he
would not have received the suspension. We CLARIFY the FAD accordingly.
To establish a prima facie case of reprisal discrimination, a complainant
must show that: (1) he engaged in protected activity; (2) the alleged
discriminating official was aware of the protected activity; (3) he was
adversely affected by an action of the agency contemporaneously with
or subsequent to the protected activity; and (4) there is a causal
connection between the protected activity and the adverse employment
action. Cook v. United States Postal Service, EEOC Appeal No. 01964367
(April 30, 1999); Hochstadt, supra. After consideration of the record,
we find that complainant has established a prima facie case of reprisal,
as he had previously filed an EEO complaint against the MDO in 1996, and
the suspension followed the protected activity in such a time and manner
that a retaliatory motive could be inferred. However, we find that the
agency articulated a legitimate, nonretaliatory reason for issuing the
suspension, as noted above, and complainant has failed to present credible
evidence that this reason was a pretext for reprisal. Therefore, after a
careful review of the record and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD as CLARIFIED.
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:
February 15, 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:
_________________________
__________________________
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. These regulations can be found on EEOC's
website at WWW.EEOC.GOV.
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.
3 The Commission notes that an agency arbitrator found that the fourteen
(14) day suspension was not for just cause, and concluded that the
appropriate progressive discipline was a seven (7) day suspension.