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).