01980625
03-29-2000
Thomas L. Stephens, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Thomas L. Stephens v. United States Postal Service
01980625
March 29, 2000
Thomas L. Stephens, )
Complainant, )
) Appeal No. 01980625
v. ) Agency No. 4H350101996
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of age (41) and physical disabilities (right foot, left wrist, and
back), in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation
Act of 1973,<1> as amended, 29 U.S.C. � 791, et seq.<2> The appeal
is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a City Letter Carrier at the agency's Gadsden, Alabama postal facility.
Complainant claims that he was discriminated against when his supervisor
(S) issued him a Letter of Warning (LOW) in September 1995, charging
him with the unauthorized use of overtime. He contends that S did not
discipline other co-workers for the same infraction during the same pay
period, and that at least one of these workers was less than 40 years
of age.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, the agency issued a FAD, finding no discrimination,
determining that complainant failed to present sufficient evidence
to establish a prima facie case regarding either alleged basis of
discrimination.
On appeal, complainant contends that the agency failed to consider a
number of his arguments, most notably his claim of harassment.<3> The
agency 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), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), and Prewitt v. U.S. 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 age discrimination.<4> In reaching
this conclusion, we note that complainant himself fails to assert
discriminatory animus, instead speculating that: S's treatment is the
result of him being an "outsider;" or because he questions her orders;
or perhaps because he insists on having break and lunch periods. He also
merely speculates that his status as a disabled veteran may have caused S
to treat him less favorably. We find nothing in the record from which to
infer that S was motivated by discriminatory animus toward complainant's
age or disability when she issued the LOW, which was properly issued
pursuant to postal rules and regulations.
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 (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:
March 29, 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
1The 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.
2On 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.
3We note that complainant's EEO report reflects a reference to
"harassment, " and that it is also reflected in his formal complaint by
way of a non-specific reference to a "letter," presumably meaning his
letter to the EEO Manager in which he sets forth multiple incidents as
evidence of harassment. The agency notified complainant that it was
accepting only the instant issue for investigation, giving him the
opportunity to object if he disagreed with the issue as defined by
the agency. Because complainant did not object, and given the vague
reference to a "letter" in his formal complaint, we find that the agency
properly investigated only the issue on appeal. Therefore, because this
issue is not properly before us, and has not otherwise been developed
for appeal, we will not further address it herein.
4Assuming arguendo, that complainant established a prima facie case of
disability discrimination, we nonetheless find that he fails to prevail
on this basis for the reasons set forth above. Consequently, we do
not address the FAD's analysis of whether complainant is a "disabled
individual" under the Rehabilitation Act.