01971701
01-15-1999
John A. Phipps II, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.
John A. Phipps II v. United States Postal Service
01971701
January 15, 1999
John A. Phipps II, )
Appellant, )
) Appeal No. 01971701
v. ) Agency No. 1C-451-1012-96
) Hearing No. 220-96-5195X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region),)
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Black), and
physical disability (left eye and back), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Appellant alleges he was discriminated against when on August 19, 1995,
he was hit by a forklift operated by a co-worker (CW), resulting in a back
injury. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a PS-04 Mail Handler at the agency's Bulk Mail Center, Cincinnati,
Ohio. On August 19, 1995, CW backed his forklift into a pallet, which in
turn struck a pallet that struck appellant in the leg. Appellant went
to the hospital and was diagnosed and treated for "lumbar and multiple
contusions." After the supervisor on duty examined statements from
appellant, CW, and three witnesses, agency management officials concluded
that the accident was not intentional, and CW was informed verbally by
his supervisor (S1) that his forklift privileges were revoked until he
received eight hours of forklift retraining.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on October
18, 1995. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e),
the AJ issued a Recommended Decision (RD) without a hearing, finding
no discrimination.
The AJ first concluded that appellant failed to establish that the
incident, or the investigation thereof, was intentional and motivated by
racial animus. In reaching this conclusion, the AJ noted that the agency
responded to and investigated the incident, contacted postal inspectors,
revoked CW's forklift operation privileges until he was retrained, and
disciplined CW for committing an unsafe act. The AJ then concluded
that appellant failed to establish a prima facie case of disability
discrimination because he presented no evidence that either his eye or
back condition constituted a disability which substantially limited a
major life activity. The agency's FAD adopted the AJ's RD. On appeal,
appellant contends, among other things, that the AJ erred because the
record was devoid of evidence that the postal inspector investigated the
incident, and further, that there was no record that CW was disciplined as
a result of the incident. The agency requests that we affirm its FAD.
After a careful review of the record, and applying the standards set forth
in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981), the Commission
finds that the AJ's RD summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We agree with the AJ
that appellant presented no evidence that he was an individual with a
disability as defined by the Rehabilitation Act, and thus, failed to
establish a prima facie case of disability discrimination. See Cabrera
v. United States Postal Service, EEOC Appeal No. 01933109 (May 23, 1994)
(where no evidence of blindness in left eye was provided by complainant,
no prima facie case of disability discrimination was established).
We also note that while the record contains no evidence that CW was
disciplined, and further, that the agency representative informed the AJ
that the postal inspectors had no record that the incident was reported
to them by S1, we find no evidence that the incident, or the agency's
response, was motivated by discriminatory animus. By all accounts, CW
carelessly operated a forklift, resulting in the accident which caused
appellant's injuries and for which CW was required to attend forklift
operation retraining. We discern no basis to disturb the AJ's findings of
no discrimination which were based on a detailed assessment of the record.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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:
Jan 15, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that while appellant alleged, and the agency
accepted, the above-referenced allegation on the additional bases of
retaliation, appellant did not state retaliation was a basis in his
affidavit to the investigator, and the Administrative Judge (AJ) did not
address retaliation in her Recommended Decision. Moreover, appellant
did not allege on appeal that the AJ failed to consider retaliation as a
basis. We therefore treat the basis of retaliation as abandoned by
appellant.