01972579
01-21-2000
Stacey H. Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Stacey H. Brown v. United States Postal Service
01972579
January 21, 2000
Stacey H. Brown, )
Complainant, )
) Appeal No. 01972579
v. ) Agency No. 4D-400-1099-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of physical disability (Systematic Lupus), in violation of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
Complainant alleges he was discriminated against when: (1) on August 14,
1995, he was verbally denied the opportunity to interview for a vacant
custodial laborer position; and (2) on August 15, 1995, he was denied the
interview in writing. 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, complainant was employed
as a Mailhandler at the agency's Evansville, IN facility. As background,
appellant stated that in 1993, he requested a job transfer to a custodial
position. Although he claims he was notified by the then Manager of
Distribution Operations that he would be transferred on November 1,
1993, he was not ultimately transferred.
Then, on March 9, 1995, complainant was granted an interview for a
custodian position, but was not selected for the position. Complainant
remembered that the Selecting Official (SO)(disability not specified)
stated at the beginning of the interview that the selection for the
position would be based on the interview alone, and not on any prior
promises made by others.
In July or August 1995, complainant applied for the laborer custodian
position which is the subject of the instant complaint. On August 14,
1995, he spoke with the SO after learning that others had been interviewed
for the position, whereas he had not. Complainant alleged that when he
asked the SO why he had not been afforded an interview for the position,
the SO responded that complainant was not granted an interview because of
his poor sick leave record, as well as his poor job attitude. However,
according to complainant, the SO stated complainant would be considered
for a position a year from his last interview, which had been on March
9, 1995, if he improved. On August 15, 1995, complainant received a
letter from the SO stating that complainant would be considered for an
interview a year from March 1995, provided that he made improvements in
his job attitude and attendance.
The SO averred in his affidavit that he did not grant an interview
to complainant for the August 1995 Custodian position because of
complainant's "attitude of demanding the job." Specifically, the SO
stated that during the interview on March 9, 1995, he notified complainant
that the selection would be based on the interview alone and not prior
promises made. Following this statement, complainant remarked that he
knew this, but that he believed he should still get the job. On August
14, 1995, the SO explained to complainant that if complainant showed
some improvements over the next year, he would consider interviewing him
for a position. Finally, he stated that in accordance with his letter
to complainant on August 15, 1995, complainant was interviewed for a
custodian position in March of 1996.
With respect to complainant's disability, the SO averred that complainant
told him that he had Lupus a day before the March 9, 1995, interview.
Until this time, he was unaware that complainant had Lupus. He also
averred that he interviewed three comparatives (all with no disabilities)
for the custodian position.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on November 8, 1995.
At the conclusion of the investigation, complainant failed to request
a hearing, and the agency issued a final agency decision.
The FAD concluded that complainant failed to establish a prima facie case
of disability discrimination, in that he failed to present any medical
documentation indicating that he had a physical or mental impairment which
substantially limits a major life activity. Furthermore, the agency also
found that complainant failed to show that similarly situated employees
not in his protected classes were treated differently than he was under
similar circumstances. Specifically, the agency found that since the
comparatives worked in different positions than complainant did, they
were not similarly situated.
On appeal, complainant submits medical documentation that he has had Lupus
since 1987. Furthermore, he submits information which describes Lupus.
The agency states that it has not received any appeal statement from
complainant and requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981), the Commission agrees with
the agency that complainant failed to establish a prima facie case of
disability discrimination because he failed to show how his impairment,
Lupus, substantially limits a major life activity. Although there is
some indication in the record that complainant alerted the agency to
his Lupus, he has not proven that his impairment rises to the level of
a disability as defined by the Rehabilitation Act, or that the agency
regarded complainant as having a disability.
The Commission also finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that after a review of complainant's attendance records, as well
as those of the comparatives, we find that complainant incurred more
incidents of absence than the comparatives. Although complainant avers
in his affidavit that his attendance problems were due to his condition,
he has not shown that his sick leave use was in fact related to his
Lupus, or that his use of sick leave for Lupus was causally related to
his failure to be interviewed for the position. In fact, we note that
complainant's attendance record shows more instances of annual leave
and leave without pay than sick leave use. Furthermore, complainant's
sick leave use, as opposed to his annual leave use, declined between
1994 and 1995, which does not support complainant's contention that he
was not interviewed in August 1995 because of his use of sick leave.
Although we find that the SO's reliance on complainant's "attitude" as
a reason for not interviewing him was highly subjective, we find that
complainant has not shown that the decision not to interview him was
based on a discriminatory animus. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
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:
January 21, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On 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.