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.