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.