Jerry Duncan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01981446 (E.E.O.C. Apr. 24, 2000)

01981446

04-24-2000

Jerry Duncan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.


Jerry Duncan v. United States Postal Service

01981446

April 24, 2000

Jerry Duncan, )

Complainant, )

) Appeal No. 01981446

v. ) Agency No. 4G-700-1268-95

) Hearing No. 270-96-9114X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest Region), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final

decision concerning his equal employment opportunity 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 Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

Complainant alleges he was discriminated against on the bases of race

(Black), sex (male), age (43) and physical disability (left wrist) when

the agency terminated him during his probationary period.<2> For the

following reasons, the Commission affirms the agency's final decision.

The record reveals that complainant, a City Letter Carrier at an agency

facility in Alexandria, Louisiana, filed a formal EEO complaint on June

29, 1995, alleging that the agency had discriminated against him as

referenced above. At the conclusion of the investigation, complainant

received a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). Following a hearing, the AJ

issued a decision finding no discrimination which the agency adopted in

its entirety. It is from this decision which complainant now appeals.

On appeal, complainant reiterates his belief that the agency discriminated

against him. The agency did not respond.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). A finding that discriminatory intent

did not exist is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

We do not reach the issue of whether or not the AJ correctly held that

complainant is not an individual with a disability within the meaning

of the Rehabilitation Act.<3> Based on our review of the record, we

find that even assuming arguendo complainant is a qualified individual

with a disability, we note that complainant's supervisor was unaware that

complainant had a reduced range of motion in his left wrist and that there

is no evidence to support a finding that management ever received anything

that could be interpreted as a request for a reasonable accommodation.

See EEOC Enforcement Guidance on Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act (March 1, 1999).

Since complainant's disability was not made known to the relevant

management officials, we find that the agency's failure to provide

complainant with a reasonable accommodation was not in violation of its

obligations under the Rehabilitation Act.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. We discern no basis

to disturb the AJ's ultimate conclusion that complainant failed to

establish that his termination was motivated by discriminatory animus

towards his race, sex, age or physical disability. Therefore, after a

careful review of the record, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 Complainant did not allege disability discrimination in his formal

complaint, and the investigative report did not reference it as an

accepted basis. However, the Administrative Judge permitted testimony

about complainant's disability and addressed it in her Recommended

Decision.

3 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: www.eeoc.gov.