Jaime Medina, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Region), Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01990709 (E.E.O.C. Feb. 15, 2000)

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.