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.