01996289
03-20-2000
Theodosia Henry, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Theodosia Henry, )
Complainant, )
) Appeal No. 01996289
v. ) Agency No. 4K-200-0190-98
) Hearing No. 100-99-7540X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). Complainant alleges she was
discriminated against on the basis of physical disability (knee and back
injury) when as of February 3, 1998, her requests for reinstatement were
not acted upon.
The record reveals that complainant was removed from the agency's employ
in March 1989 for cause, specifically, for being absent without leave.
Complainant filed a formal EEO complaint with the agency on July 2, 1998,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding that summary judgment was appropriate because complainant failed
to establish that she was an individual with a disability within the
meaning of the Rehabilitation Act based on her attestation that she is no
longer injured. The AJ further found that complainant was not regarded
as disabled because the named responsible management official, a human
resource specialist, had no knowledge of complainant's alleged disability.
In conclusion, the AJ found that even if complainant was covered by the
Rehabilitation Act, she failed to refute the fact that she was removed
for cause in 1989. The FAD concurred with the AJ's determination that
the evidence of record did not support complainant's claim of disability
discrimination. Neither party submitted a statement on appeal.
We do not reach the issue of whether or not the AJ correctly held that
complainant is not a "qualified individual with a disability" within the
meaning of the Rehabilitation Act. Based on our review of the record, we
find that even assuming arguendo complainant is a "qualified individual
with a disability," we discern no basis to disturb the FAD's ultimate
conclusion that complainant failed to establish that its failure to act
on her reinstatement requests were motivated by discriminatory animus.
Specifically, we note that complainant fails to present any evidence of
a nexus between her alleged disability and the alleged adverse action.
See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981);
Visage v. Department of the Air Force, EEOC Request No. 05940993 (July
10, 1995). Therefore, after a careful review of the record, we AFFIRM
the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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:
3/20/00
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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.