Jessie B. Hayes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01a00612 (E.E.O.C. May. 16, 2000)

01a00612

05-16-2000

Jessie B. Hayes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jessie B. Hayes, ) Appeal No. 01A00612

Complainant, ) Agency Nos. 4D-290-1048-96

) 4D-290-1022-96

v. ) 4D-290-1077-96

) 4D-290-1039-96

William J. Henderson, ) Hearing Nos. 140-97-8060X-HSC

Postmaster General, ) 140-97-8118X-HSC

United States Postal Service, ) 140-97-8289X-HSC

Agency. ) 140-97-8352X-HSC

_______________________________ )

DECISION

Complainant filed the instant appeal from the agency's October 12,

1999 decision finding that the agency did not discriminate against

complainant based on complainant's sex (female), age (date of birth:

October 12, 1953); race (Black), disability (stress and depression),

and in retaliation for prior protected activity.<1>

All of the following claims in the instant matter allege discrimination

on the bases of sex, race, disability, and in retaliation for prior

protected activity, except for claim 8 which also includes a claim of

age discrimination:

From January 12, 1996 to the present, complainant was denied annual

leave in lieu of sick leave.

Since February 5, 1996, complainant was placed on Absence Without Leave

(AWOL).

On November 22, 1995, complainant was not allowed to work her

non-scheduled work day.

On November 23, 1995, complainant was not allowed to work her holiday.

On April 1, 1996, complainant was issued a Letter of Notice of Removal.

On April 1, 1996, complainant was issued a Letter of Denial of Annual

Leave.

On April 1, 1996, complainant was issued a Letter of Demand.

On January 12, 1996, complainant's manager publicly yelled at her

and threatened her with removal, causing complainant to feel ill and

thereafter complainant went home on requested leave.

A hearing was held before an EEOC Administrative Judge on July 28 and 29,

1998.<2> An administrative judge issued a bench decision dated March 30,

1999 finding that: (1) complainant was discriminated against in claim

1 due to the agency's failure to reasonably accommodate complainant's

disability; (2) complainant was discriminated in claim 8 in retaliation

for complainant's prior protected activity; and (3) complainant was

not discriminated against on any other bases or in any other claim.

The agency found in its October 12, 1999 decision that complainant was

not discriminated against on any alleged bases in any claim. On appeal,

complainant makes no specific argument regarding the agency's decision

or the administrative judge's decision.

Findings of No Discrimination by the EEOC Administrative Judge

After reviewing the entire record, we agree with the administrative judge

that complainant has failed to show by a preponderance of the evidence

that she was discriminated against as alleged in claims 2 - 7 or on

any of the alleged bases for which the administrative judge found no

discrimination in claims 1 and 8. Even if complainant had established

a prima facie case in each of these claims (not including the basis of

disability in claim 1 and not including the basis of retaliation for

prior protected activity in claim 8), we still find that complainant

failed to show that the agency's actions at issue were motivated by

discriminatory animus as alleged.

Claim 1 - Disability Discrimination

The administrative judge found that the agency failed to reasonably

accommodate complainant's disability. The administrative judge described

complainant's disability as consisting of stress and depression.

The administrative judge found that complainant had been diagnosed with

depression and that complainant had stated that she was disoriented,

unable to think clearly, and/or was unable to function in and around

people at her work station or work location.

An agency is required to make reasonable accommodation to the known

physical and mental limitations of a qualified individual with a

disability unless the agency can show that accommodation would impose

an undue hardship.<3> 29 C.F.R. � 1630.2(o); 29 C.F.R. � 1630.2(p); 29

C.F.R. � 1630.9. As a threshold matter, a person claiming protection

under the Rehabilitation Act must show that she is a person with a

disability as defined therein. Drummond v. Department of the Army,

EEOC Petition No. 03990069 (Mar. 6, 2000). 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

activity. 29 C.F.R. � 1630.2(g); see Albertson's, Inc. v. Kirkingburg,

527 U.S. 555 (1999); Sutton v. United Airlines, Inc., 527 U.S. 471 (1999);

Murphy v. United Parcel Svc., Inc., 527 U.S. 516 (1999). The phrase

�major life activities� means �functions such as caring for oneself,

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

learning, and working.� 29 C.F.R. � 1630.2(i).

The term �substantially limits� means:

Unable to perform a major life activity that the average person in the

general population can perform; or

Significantly restricted as to the condition, manner or duration under

which an individual can perform a particular major life activity as

compared to the condition, manner, or duration under which the average

person in the general population can perform that same major life

activity.

Id. at � 1630.2(j)(1). The ADA regulations further provide:

The following factors should be considered in determining whether an

individual is substantially limited in a major life activity:

The nature and severity of the impairment;

The duration or expected duration of the impairment; and

The permanent or long term impact, or the expected permanent or long

term impact of or resulting from the impairment.

Id. at � 1630.2(j)(2).

In the instant matter the agency found that complainant was not

a qualified individual with a disability. The agency found that

complainant's medical evidence failed to substantiate her claim that

she was disabled by depression and stress. The agency argues that

complaint's major life activities were not substantially limited.

The record contains a statement from Physician A (speciality - Internal

Medicine), provided in the context of a claim filed with the Office

of Workers' Compensation Programs (OWCP), dated January 30, 1992,

stating that: (1) complainant was examined on January 22, 1992; (2) the

diagnosis of �[c]ondition [d]ue to [i]njury� was �anxiety/depressive

disorder: job related;� and (3) complainant was totally disabled from

�1/22/92 to continuing.� A Consultation Report from Physician B dated

February 12, 1992 stated that complainant �needs to be treated for

her major depression� and recommended that �she should not try to work

until she had established psychiatric follow-up.� The record indicates

that complainant was voluntarily hospitalized from February 17, 1992 to

February 19, 1992 at the Institute of Psychiatry, at which time she was

released upon her request to continue treatment on an outpatient basis

and return to work. The record contains a statement from Physician C

(speciality - Psychiatry), provided in the context of a claim filed with

the OWCP, dated March 4, 1992, stating that: (1) complainant was examined

on February 17, 1992; (2) the diagnosis of �[c]ondition [d]ue to [i]njury�

was �none;� (3) complainant was not partially or totally disabled; and

(4) complainant was able to resume work on the date of examination,

February 17, 1992. The record also contains an Employee Assistance

Program Intake Assessment dated January 11, 1996 from Counselor A (a

social worker) who stated that complainant �appears to be suffering from

high levels of anxiety which results in depression and verbal outburst.�

A medical evaluation dated January 15, 1993 provided by Physician D,

during the examination of complainant in conjunction with a fitness for

duty examination, stated:

[Complainant] has no evidence of suicidal thoughts, no evidence of violent

thoughts, intent or plan, and no psychosis. She appears oriented times

three. She does admit to depressed mood at times, and has had a problem,

with depressed mood intermittently in the past.

After reviewing the medical evidence in the file, the Commission agrees

with the agency that complainant has failed to show that she has a

disability as defined in 29 C.F.R. � 1630.2(g). Complainant has failed to

show how her claimed depression and stress substantially limits a major

life activity. While complainant has received some treatment, she has

completely failed to show that her medical condition substantially limits

any of the major life activities set forth in 29 C.F.R. � 1630.2(i).

Furthermore, the record contains insufficient evidence to show that

complainant has a record of disability or that any agency official

regarded complainant as having a disability. Accordingly, the Commission

finds that complainant is not an �individual with a disability� within

the meaning of the Rehabilitation Act. Therefore, we find that the

administrative judge improperly determined that complainant was not

reasonably accommodated in claim 1 and we find that the agency properly

found that the agency did not discriminate against complainant on the

basis of disability in claim 1.

Claim 8 - Retaliation

The administrative judge found that complainant established a prima

facie case of retaliation in claim 8. The person who allegedly yelled

at complainant and threatened complainant with removal was the Officer

in Charge (OIC) of the Mt. Pleasant Post Office. The administrative

judge found that the OIC's claim that he was unaware of complainant's

prior EEO activity was not credible. The administrative judge found that

complainant had filed 41 complaints and that the OIC had been named in two

such complaints. The administrative judge noted that Person A testified

that she had informed the OIC that she would �sit in on any activities

involving� the complainant. The administrative judge found: �It is not

credible and it stretches credulity to believe that with all of this

foregoing activity and all of the history surrounding the Complainant,

[the OIC] was not aware of her prior EEO activity.� The agency argues

that the OIC was unaware of complainant's prior protected activity as

of January 12, 1996.

The Commission has explained the following standard of review to be used

in appeals in which a hearing has been held before an EEOC Administrative

Judge:

Pursuant to 64 Fed. Reg. 37,644, 37659 (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). . . . The AJ's [Administrative Judge's]

legal conclusions are reviewed de novo.

Maietta v. United States Postal Serv., EEOC Request No. 05990224 (Feb. 3,

2000). A finding regarding whether or not discriminatory intent existed

is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273,

293 (1982).

The Commission finds that there is not substantial evidence in the

record to support the administrative judge's finding that the OIC had

knowledge of complainant's prior protected activity prior to the incident

on January 12, 1996. The investigative record lists four complaints

in which the OIC is named as one of the responsible agency officials.

None of these complaints concern incidents occurring prior to January 12,

1996. Therefore, the OIC could not have had knowledge of the complaints

naming him as a responsible agency official at the time of the incident

on January 12, 1996.

The OIC testified that he was unaware of complainant's prior protected

activity on January 12, 1996. The record indicates that the OIC began

his tenure at the Mt. Pleasant Post Office the week of the January

12, 1996 incident. Complainant has not shown that the OIC knew of

complainant's prior protected activity prior to the incident on January

12, 1996. The record does not contain evidence upon which a reasonable

mind might conclude that on January 12, 1996 the OIC had prior knowledge

of complainant's prior protected activity. The Commission finds that

the OIC could not have discriminated against complainant on January 12,

1996 in retaliation for her prior protected activity. Therefore, we find

that the administrative judge improperly determined that complainant was

discriminated against in retaliation for her prior protected activity

in claim 8 and we find that the agency properly found that the agency

did not discriminate against complainant in retaliation for her prior

protected activity in claim 8.

The agency's decision finding no discrimination is AFFIRMED.

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).

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:

May 16, 2000

______________________________

DATE Frances M. Hart

Executive Officer

Executive

Secretariat

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:

_____________________ _________________________ Date

Equal Employment Assistant

1On 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.

2Complainant has not challenged the administrative judge's framing of

the complaint. The Commission has framed the issues the same as the

issues were framed by the administrative judge.

3The 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.