James R. Katsten, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01970652 (E.E.O.C. Sep. 3, 1999)

01970652

09-03-1999

James R. Katsten, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


James R. Katsten, )

Appellant, )

)

v. ) Appeal No. 01970652

) Agency No. 4E-970-1075-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On November 12, 1996, James R. Katsten (hereinafter referred to as

appellant) filed a timely appeal from the September 13, 1996, final

decision of the United States Postal Service (hereinafter referred

to as the agency) concerning his complaint of unlawful employment

discrimination in violation of the Rehabilitation Act of 1973, as amended,

29 U.S.C. ��791, 794(c), and the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. �621 et seq. Appellant received the

final agency decision on October 15, 1996. Accordingly, the appeal is

timely filed (see 29 C.F.R. �1614.402(a)) and is accepted in accordance

with EEOC Order No. 960, as amended. For the reasons that follow,

the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the appellant has proven,

by a preponderance of the evidence, that the agency discriminated against

him on the bases of age (DOB 5-16-45) and disability (spine and shoulder)

when he was removed during his probationary period on March 17, 1995.

Appellant filed a formal complaint on August 7, 1995. Following an

investigation, he was advised of his rights to request a hearing or an

immediate final agency decision (FAD). Appellant's request for a hearing

was untimely, and the agency issued a FAD, finding no discrimination.

Appellant began his employment with the agency in late December 1994

as a PTF Distribution Window Clerk at the agency's facility in Castle

Rock, Washington. According to the Postmaster (age 47) (PM), following

training, an incumbent to this position was expected to meet certain

processing standards for mail distribution, and, at all times during

his employment, appellant was significantly below the standard rates

of production for all aspects of the position.<1> In addition, the

PM stated that delay in processing mail and serious errors in sorting

severely retarded operations at the facility. Further, the PM observed

that appellant's replacement, a transfer employee from another facility,

processed mail at almost twice the rate of appellant within her first

30 days of service without significant errors. Finally, the PM stated

that while he was generally aware that appellant had some military

service-connected conditions, his pre-employment physical examination

showed him to be without medical risk or restrictions, and appellant's

medical condition had no effect on the decision to remove him.<2>

While appellant conceded that he did not meet the standards established

by the PM, he asserted that the PM used his performance as a pretext to

remove him for personal reasons in order to re-employ a former employee

who sought return to the facility.<3> He also stated that his physical

problems limited his ability to meet the performance standards, although

he acknowledged that he never requested reasonable accommodation.

In its FAD, the agency found that it articulated legitimate,

nondiscriminatory reasons for appellant's removal, i.e., he failed

to perform successfully in all essential functions of his position.

The agency concluded that appellant was not able to demonstrate that the

agency's reason was a pretext for discrimination and that he failed to

prove that he was the victim of intentional discrimination.

In his appeal statement, appellant complains about the time limit for

requesting a hearing and repeats his belief that he was removed to create

a vacancy for a former employee. The agency argues that appellant did not

establish a prima facie case of discrimination based on age or disability.

Age Discrimination

Generally, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d

1003 (1st Cir. 1979). Following this established order of analysis,

to establish a prima facie case, appellant must raise an inference

of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567

(1978). Next, we examine the agency's explanation for its actions. Here,

the PM explained that appellant failed to meet established standards of

performance in all essential duties of his position. We find that the

agency articulated a legitimate, nondiscriminatory reason for its action.

Turning to the third step of the McDonnell Douglas analysis, appellant

must demonstrate by a preponderance of the evidence that the agency's

actions were motivated by discrimination, i.e.,, its articulated reason

was a sham or pretext for discrimination. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center

v. Hicks, 509 U.S. 502 (1993). Under the ADEA, the appellant must show

that his age was a determining factor in the agency's decision, that

is, considerations of age made a difference in the agency's decision to

remove him. Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993) (age

had "a role in the process and a determinative influence on the outcome").

Other than asserting his age, appellant did not put forth argument

explaining how his age was a factor in the decision to remove him.

Instead, appellant objected to the work performance standards required by

the PM and contended he was removed to make room for a former employee.

With regard to the first claim, appellant never asserted, and the record

does not show, that other employees were not held to the established

standards. As to the new employee, appellant provided no evidence or

information in support of his contention. Based on the record before

us, we find that appellant did not demonstrate that the agency's stated

reasons were not its true reasons or that it was motivated by a prohibited

factor. We find that the agency did not discriminate against appellant

on the basis of age.

Disability Discrimination

As a threshold matter, one claiming protection under the Rehabilitation

Act must show that s/he is a person with a disability as defined therein.

A person with a disability is one who has, has a record of, or is

regarded as having, a physical or mental impairment that substantially

limits one or more major life activities. 29 C.F.R. �1614.203(a)(1); 29

C.F.R. �1630.2(g). Major life activities include caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. �1614.203(a)(3); 29 C.F.R. �1630.2(i).

The record shows that appellant has service-connected medical conditions.

Without more, however, such conditions do not rise to the level of

disability under the Rehabilitation Act. Other than a February 1995

letter setting forth his service-connected conditions, the record

does not contain any documentation establishing that his conditions

affect a major life activity or otherwise incapacitate him from work.

Appellant has not shown that he is a disabled person within the meaning

of the Rehabilitation Act and the Commission's regulations. We find

that there is no evidence to show that appellant is a person with a

disability. Consequently, appellant is not subject to coverage under

the Rehabilitation Act.<4>

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

09-03-99

DATE Carlton Hadden, Acting Director

1The PM stated that the essential functions of the distribution

clerk position were hashing, sorting, boxing and the dispatch

of mail.

2The record shows that, as of February 1995, appellant had certain

service-related conditions rated at 10% for his back.

3Although not of relevance to our decision, it is not clear whether this

employee replaced him.

4Appellant complained about the period of time within which he was

required to request a hearing. The Commission's regulations stipulate

that a complainant must respond to the agency within 30 days from his/her

receipt of this notice. 29 C.F.R. �1614.108(f).