01982007
02-09-2000
William G. Varney, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
William G. Varney v. United States Postal Service
01972265
February 9, 2000
William G. Varney, )
Complainant, )
) Appeal Nos. 01972265
v. ) 01982007
) Agency Nos. 4D-230-1139-96
William J. Henderson, ) 4D-230-1029-96
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Complainant timely initiated appeals of two final agency decisions (FADs)
concerning his complaints of unlawful employment discrimination.<1>
In a complaint filed July 15, 1996, complainant claimed that he was
discriminated against on the bases of reprisal (prior EEO activity),
physical disability (Bilateral Metatarsalgia) and mental disability
(Dysthymic Disorder), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq., when: (1) on September
28, 1995, he was issued a Seven Day Suspension for being Absent Without
Official Leave (AWOL) on September 25, 1995; (2) on October 17, and 18,
1995, he was not permitted to work penalty overtime; (3) on September 25,
1995, he was denied sick leave and given AWOL; and (4) on October 14,
18, 19, and 20, 1995, he was subjected to threatening remarks.
In a complaint dated March 18, 1996, complainant claimed discrimination on
the aforementioned bases when: (1) on December 27, 1995, his sick leave
request was denied; and (2) on August 1, 1996, he was constructively
discharged. As the appeals involve similar allegations of discrimination
which are alleged to have occurred around the same period of time, they
are hereby consolidated pursuant to 64 Fed. Reg. 37, 644, 37,661(1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.606). The
appeals are accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decisions are AFFIRMED.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a City Letter Carrier, at the agency's Waynesboro, VA facility.
Following an injury to his feet in 1987, complainant suffered severe
pain in his feet, and was later diagnosed with Bilateral Metatarsalgia.
As a result of the pain caused by this condition, on May 27, 1995,
complainant was placed on a limited duty assignment which restricted him
to, among others things, lifting and carrying 4 hours a day, as well as
standing and walking to 2 hours a day. On May 8, 1996, complainant's
orthopedist determined that complainant's condition was permanent.
Although the record is not entirely clear, it appears complainant
delivered mail by using a postal vehicle.
The record also reveals that in July 1995, complainant was diagnosed
as suffering from a Dysthymic Disorder. Complainant's psychiatrist
determined that this was as a result of intensified stressors complainant
experienced while on the job, which were due to growing discomfort
and distrust of his supervisory personnel, as well as his chronic
foot problems. In February 1996, complainant's psychiatrist determined
that, "continued exposure to the work atmosphere, given his distress,
would further exacerbate his emotional difficulties and could create a
dangerous situation for both [complainant] and other [agency] personnel.
As a result, I consider [complainant] to be disabled for his job for
the foreseeable future, and it would appear that return to work would
result in a new exacerbation of his depressive features, agitation,
and create a potentially explosive situation for him on the job."
Complainant filed for disability retirement on February 1, 1996, which
became effective August 1, 1996.
Complaint No. 1
In his first complainant, complainant alleged that the agency
discriminated against him when it issued him a seven day suspension,
and denied him penalty overtime and sick leave. Furthermore, complainant
alleged that certain employees made threatening remarks to him, such as,
"I can't take it anymore" and "you can't say that".
Following an investigation into his complaint, complainant requested that
the agency issue an immediate FAD (FAD #1). Therein, the agency concluded
that complainant failed to establish prima facie cases of disability or
reprisal discrimination. Specifically, the agency found that despite
management officials' knowledge of complainant's prior EEO activity,
complainant failed to show a nexus between the agency's action and his
prior EEO activity. Furthermore, the agency found that complainant
failed to show that he had an impairment which substantially limited a
major life activity.
FAD #1 also concluded, without further specificity, that the agency
had articulated legitimate, nondiscriminatory reasons for its actions,
which complainant had failed to prove were a pretext for discrimination.
In sum, the agency found that complainant was not discriminated against
when he was issued the suspension, denied penalty overtime, denied sick
leave, and harassed due to threatening comments.
Complaint No. 2
Complainant alleged in his second complaint that the agency denied him
sick leave on December 27, 1995, and created a hostile work environment
which caused his constructive discharge. In its second FAD (FAD #2),
the agency concluded that complainant failed to establish a prima facie
case on any bases in that he failed to show a nexus between his prior EEO
activities and the actions alleged. Furthermore, the agency concluded
that complainant failed to establish a prima facie case of disability
discrimination because he failed to present evidence which showed that
he had a disability as defined by the Rehabilitation Act.
Furthermore, the agency determined that it had articulated legitimate,
nondiscriminatory reasons for its actions, namely, that it did not deny
complainant sick leave on December 27, 1995, and that management denied
taking any actions which made complainant seek retirement. In sum, the
agency found that complainant was not discriminated against as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that he is disabled as defined by the
Rehabilitation Act, and that the agency harassed him into filing for
disability retirement. In response to complainant's appeal, the agency
asks that we affirm its FAD.
ANALYSIS AND FINDINGS
Disability Discrimination
We begin our analysis by first examining complainant's claim of
discrimination based on his disabilities. A "person with a disability" is
one who: 1) has a physical or mental impairment that substantially limits
or restricts one or more of his or her major life activities; or 2) either
has a record of such impairment or is regarded as having the impairment.
See 29 C.F.R. �1630.2(g). Major life activities include functions
such as self care, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i)<2>
To establish a prima facie case of discrimination based on a disability,
complainant must show: 1) that he is a "person with a disability" for
purposes of the Rehabilitation Act; 2) that he is a "qualified person
with a disability," in that he is qualified for, and can perform,
the essential functions of the position at issue with or without
reasonable accommodation, as specified in 29 C.F.R. �1630.2; and 3) that
he received an adverse employment action as a result of his disability.
Treadwell v. Alexander, 707 F.2d 473 (11th Cir. 1983); Prewitt v. United
States Postal Service, 662 F.2d 242 (5th Cir. 1981).
In this case, we find that complainant does in fact suffer from
impairments which substantially limit his major life functions. However,
we also find that complainant has failed to show that he was a qualified
individual with a disability, in that he failed to show that he could
safely perform the essential functions of his position, with or without
reasonable accommodation. See 29 C.F.R. �1630.2(m). Although complainant
appears qualified to perform the duties of his position with respect
to his Bilateral Metatarsalgia with accommodation, medical evidence,
including that of his treating psychiatrist, established that complainant
is unable to work at a job at the post office, and will continue to
be unable to work for the foreseeable future. In fact, complainant's
physician advised that it was not in complaint's best interest to return
to the post office. Accordingly, we find that complainant can not
establish a prima facie case of discrimination based on his Dysthymic
Disorder because he is not a qualified individual with a disability.
Discrimination Based on Reprisal
Complaint No. 1
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that it articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the Customer Service Supervisor(Supervisor) testified that complainant
was issued the suspension because he left the workroom floor without
explanation on September 25, 1995.
Regarding his claim that he was denied penalty overtime on October
17, 1995, the Supervisor testified complainant did not receive penalty
overtime on October 17, 1995 because it was not his scheduled day to work,
and the agency could not get in touch with complainant since complainant
did not provide the agency with a home phone number, as he did not want
to be contacted at home. The supervisor also testified that on October
18, 1995, complainant worked two hours of overtime which was within his
medical restrictions. In fact, the agency maintained that complainant
"cased and pulled" a co-worker's route so that complainant could perform
overtime work which was within his medical restrictions.
With respect to complainant's allegation that he was denied sick leave
and charged AWOL on September 25, 1995, the Supervisor testified that
although complainant was approved for sick leave from 11:25 until the end
of his shift, he was four hours late in arriving to work that morning.
Complainant submitted a request for sick leave the following day, but it
was not approved. Thus, she testified, complainant was charged as AWOL.
Finally, with respect to complainant's allegations that co-workers
made threatening comments to him, the Supervisor testified that she
investigated the complaints by monitoring the workroom floor, and
testified that she heard no threatening remarks. Furthermore, she
testified that she spoke with those alleged to have made the comments
and determined that the comments did not rise to a threatening level.
The Commission 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
although complainant alleged that another individual was late for work and
was not charged AWOL, we find that complainant and the co-worker were not
similarly situated, in that the co-worker was ten minutes late for work
whereas complainant was four hours late. Furthermore, with respect to
complainant's AWOL charge on September 25, 1995, we find that complainant
failed to provide any explanation for his absence from work. We also
find insufficient evidence that the offensive remarks made were severe
or pervasive, or that they rose to the level of actionable harassment.
Furthermore, complainant has presented insufficient evidence that such
statements were made in response to his EEO activity.
Complaint No. 2
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that it articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
with respect to complainant's allegation that he was denied sick leave,
we find that on December 28, 1995, complainant requested sick leave
due to, "sexual banter on the work floor." That request was denied,
and complainant was given instructions regarding requests for sick leave.
The next day, complainant submitted a doctor's note with a request for two
hours of sick leave for December 28, 1995. His request was then approved.
The Commission 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 complainant failed to show that he was treated differently than
anyone else who requested sick leave for a similar reason. Furthermore,
he failed to present sufficient evidence that he was denied sick leave
based on a discriminatory animus.
Complainant also alleged that he was harassed and forced to work under
intolerable working conditions, when co-workers called him "gay", as
well when he was forced to listen to inappropriate personal conversation
while at work. Complainant alleged that this behavior constituted a
constructive discharge. The Commission has established three elements
which complainant must prove to substantiate a claim of constructive
discharge: (1) a reasonable person in complainant's position would
have found the working conditions intolerable; (2) the conduct that
constituted discrimination against complainant created the intolerable
working conditions; and (3) complainant's involuntary resignation resulted
from the intolerable working conditions. See Juanita A. Christoph v. Air
Force, EEOC Request No. 05900361 (June 19, 1990).
In this case, complainant must establish that he was harassed by
management on the basis of his disability and/or prior EEO activity. The
harassment of any employee that would not occur but for the employee's
disability and prior EEO activity is unlawful, if it is sufficiently
severe or pervasive. McKinney v. Dole, 765 F.2d 1129, 1138 - 39
(D.C. Cir. 1985). Whether the degree of harassment is sufficient to amount
to a violation will be determined by looking at all the circumstances,
including the frequency of the conduct, its severity, whether it is
physically threatening or humiliating, and whether it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems Inc., 510 U.S. 17, 23 (1993).
After a careful review of the comments alleged to have been directed at
complainant, we find insufficient evidence to support complainant's claims
that he was harassed due to his disability and/or prior EEO activity,
or that the alleged comments rose to a level which a reasonable person
would find intolerable. We also note that complainant's allegations of
harassment are not severe or pervasive enough to constitute a hostile
working environment. Furthermore, evidence reveals that the Supervisor
did in fact investigate complainant's complaints. Because complainant
is unable to establish essential elements of the constructive discharge
claim, i.e., the agency engaged in discriminatory conduct which created
the intolerable working conditions, complainant's constructive discharge
claim fails.
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 FADs.
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 9, 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:
__________________________
Equal Employment Assistant
__________________________
Date
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.
2The 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.