John C. Reis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest areas), Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01974553 (E.E.O.C. Jan. 21, 2000)

01974553

01-21-2000

John C. Reis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest areas), Agency.


John C. Reis v. United States Postal Service

01974553

January 21, 2000

John C. Reis, )

Complainant, )

)

v. ) Appeal No. 01974553

)

William J. Henderson, ) Agency No. 4-H-320-1306-94

Postmaster General, )

United States Postal Service )

(Southeast/Southwest areas), )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

decision of the United States Postal Service (agency) concerning his

complaint of unlawful employment discrimination, in violation of Title VII

of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq., and Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> Complainant claims discrimination based upon

his physical disability (neck, shoulder, arm and feet), mental disability

(stress) and retaliation (prior EEO activity) when on September 2, 1994,

he was issued a 14-day suspension for failure to follow instruction and

mis-delivery of the mail. The appeal is accepted in accordance with

EEOC Order No. 960.001.

On or about December 15, 1994, complainant filed a formal complaint

alleging discrimination as referenced above. Complainant's complaint

was accepted for processing. The agency conducted an investigation.

The record reveals that on March 7, 1995, complainant received a

notice of his right to request a hearing before an administrative judge

(AJ). The agency asserts that complainant never requested a hearing.

Accordingly, on April 7, 1997, the agency issued a final decision of no

discrimination. It is this agency decision which complainant now appeals.

The record reveals that during the relevant period, complainant was

assigned as a City Letter Carrier at the Jacksonville, Florida, Post

Office. By letter dated August 23, 1994, complainant was provided

notice of management's decision to suspend him for a period of 14

days for failing to follow instructions and mis-delivering the mail.

The record indicates that on June 16, 1994, complainant was instructed to

monitor mail for a particular address due to the complaints of a postal

patron regarding the receipt of other people's mail. On July 12, 1994,

a publication watch was set up for this purpose. However, on August 3,

1994, the patron complained again about the receipt of mis-delivered mail.

According to the record, complainant was asked about the mis-delivery.

Complainant advised management that the address on the letter did not

exist, and that therefore, instead of destroying the mail, complainant

delivered it.

Disability Claims

The agency found that complainant failed to present a prima facie

case of disability discrimination since it found the record absolutely

devoid of any probative evidence, medical or otherwise to demonstrate

that complainant's alleged disabilities warrant the protection of the

Rehabilitation Act. Other than the assertion that the suspension was

issued based upon medical problems associated with the neck, shoulder,

arm, feet and stress, the agency found no evidence in the record

describing the specific nature and extent of complainant's physical and

mental limitations. Accordingly, the agency found that complainant did

not meet the definition of a person with a disability, as defined by

the Rehabilitation Act.

The agency, however, assumed, for the purposes of its FAD, that

complainant established a prima facie case of disability discrimination.

The agency also found that the responsible management officials (RMOs)

articulated a legitimate, non-discriminatory justification for its

employment action. Specifically, the RMOs explained that complainant had

been warned about mis-delivery of the mail and that a publication watch

was set up for all mail addressed to the complaining patron's residence.

Yet, according to management, the patron called in to complain again

about receiving someone else's mail. Management issued the suspension

because it found that complainant failed to follow directions and

mis-delivered mail.

The agency also found that complainant failed to establish pretext or that

the agency was motivated by discriminatory animus. Complainant asserted

he had been given conflicting instructions by management. Specifically,

complainant claimed that he was instructed to attempt delivery of mail

even if he was not sure of the address. However, the agency found that

the record indicated that complainant was instructed by his supervisor

to attempt delivery even when he was unfamiliar with a person's name

so long as he was sure that the address was correct. As complainant

provided no additional evidence of pretext or discriminatory animus,

the agency found that disability discrimination was not established.

Reprisal Claim

The agency found that complainant failed to establish a prima facie case

of reprisal. Specifically, it found that while it was undisputed that

complainant engaged in prior EEO activity, complainant, nevertheless,

failed to show a causal connection between the employment action and

the prior EEO activity. The agency also determined that, for reasons

set forth above, complainant failed to prove pretext or discriminatory

animus and accordingly, failed to meet his burden of proof.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that the agency accurately set forth the relevant facts and properly

analyzed the case using the appropriate regulations, policies, and laws.

On appeal, complainant asserts that his claims were not thoroughly

investigated. In addition, complainant claims that he timely requested

but was denied a hearing before an AJ. Upon a thorough review of

the entire case file, we find the record largely undisputed and the

investigation to be sufficient. Affidavits were obtained from complainant

and all the RMOs. We also note that complainant fails to specify any

alleged flaws in the investigation and, accordingly, we find no basis

to reverse the agency's finding of no discrimination on such a basis.

In support of complainant's assertion that he timely requested

a hearing before an AJ, he submits, on appeal, a hearing request

letter addressed to the agency. This letter is dated December 9,

1995 and appears to be signed by complainant and his representative.

The letter also refers to a certified mail tracking number. However,

complainant fails to provide a copy of the returned receipt of service.

In addition, we find complainant's assertions on appeal inconsistent.

Complainant argues that he never received notice of the right to request

a hearing<2> and, yet, claims that he timely filed such a request.

Given the lack of supporting evidence in the record, we find that the

agency never received notice of complainant's request for a hearing,

and accordingly, find that complainant's rights have been waived.

In addition, as complainant offered no additional persuasive evidence

to support his claims on appeal, we discern no basis to reverse the

agency's finding of no discrimination. Accordingly, it is the decision

of the Equal Employment Opportunity Commission to AFFIRM the final agency

decision finding no discrimination.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M1199)

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). 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:

1/21/00

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

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 The record contains evidence that complainant received notice of his

hearing rights, via certified mail, including a copy of the returned

receipt of service which is signed by complainant.