Kelvin A. Rivera, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.

Equal Employment Opportunity CommissionFeb 2, 2000
01983641 (E.E.O.C. Feb. 2, 2000)

01983641

02-02-2000

Kelvin A. Rivera, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.


Kelvin A. Rivera v. United States Postal Service

01983641

February 2, 2000

Kelvin A. Rivera, )

Complainant, )

) Appeal No. 01983641

v. )

) Agency Nos. 4D-220-1102-94;

William J. Henderson, ) 4D-220-1109-96

Postmaster General, )

United States Postal Service, ) Hearing Nos. 100-96-7320X;

(Allegheny/Mid-Atl. Region), ) 100-97-7365X;

Agency. ) 100-97-7382X

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his Equal Employment Opportunity (EEO) complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and

� 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq.<1> Complainant alleges that he was discriminated against on

the bases of national origin (Hispanic) and physical disability (knee

injury/restriction on sitting) when:

1. in April 1993, the Customer Service Manager threatened to abolish

complainant's position in the Box Section;

2. on April 28, 1994, complainant was charged AWOL for April 26 -

27, 1994;

3. on May 11, 1994, complainant's reporting time was changed from 5:30

a.m. to 6:30 a.m.;

4. on May 19, 1994, complainant's request for sick leave was disapproved;

5. from May 1993 through June 1994, the Customer Service Manager made

numerous derogatory remarks about complainant's performance; and

6. on January 7, 1994, the Customer Service Manager provided complainant

written notice that he would be placed in a non-scheduled status if he

failed to submit an updated CA-17 form regarding his on the job injury.

Complainant also alleges that he was discriminated against on the bases of

national origin (Hispanic), physical disability (knee injury/restriction

on sitting) and in reprisal for prior EEO activity when:

1. on April 8, 1996, complainant received notice of a fourteen day

suspension for "Unsatisfactory Performance/Delay of Mail/Failure to

Follow Instructions;" and

2. from April through June 1996, complainant was not allowed to take a

break or have lunch with a co-worker.

The Commission accepts the appeal in accordance with EEOC Order

No. 960.001. For the following reasons, we affirm the FAD as clarified

herein.

The record reveals that complainant, a Box Clerk at the agency's Main

Post Office in Alexandria, Virginia, filed formal EEO complaints with

the agency on July 18, 1994 and June 18, 1996, alleging discrimination

as referenced above. At the conclusion of the investigation, complainant

requested a hearing before an EEOC Administrative Judge (AJ). Following

a hearing on the consolidated complaints, the AJ issued a Recommended

Decision (RD) finding no discrimination. The agency's FAD adopted the

AJ's RD with the modification that complainant could not establish

a prima facie case of disability discrimination since the nature of

his condition was temporary. On appeal, complainant submits medical

evidence that, at the relevant time, in addition to his knee injury, he

also experienced major depression. The agency did not submit a response.

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws.<2> We note that complainant failed to

present evidence that any of the agency's actions were in retaliation

for complainant's prior EEO activity or were motivated by discriminatory

animus toward complainant's national origin or physical disability.<3>

We also note that the AJ specifically found that complainant's testimony

that he was disabled at the time of the alleged discrimination was

not refuted by the record. Accordingly, we find that the FAD erred

in finding that, because his impairment was not permanent, complainant

could not establish a prima facie case of disability discrimination.

We discern no basis to disturb the AJ's findings of no discrimination

which are supported by substantial evidence in the record. 64 Fed. Reg

37644, 37659, (1999) (to be codified at 29 C.F.R. � 1614.405(a)).

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we affirm the FAD

as clarified.

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:

February 2, 2000

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 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.

3 For the first time on appeal, complainant requests that mental

disability (severe depression) be included as an additional basis of

his complaint. However, to allow complainant to raise a basis not

presented to the agency at some point prior to its final determination

would thwart the investigative process. Absent a compelling reason, an

complainant may not add a new basis on appeal. Wodjak v. Department of

the Treasury, EEOC Appeal No. 01952440 (March 27, 1997). Complainant has

presented no such reason.