01984448
02-07-2000
William Keyes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-Western Areas) Agency.
William Keyes v. United States Postal Service
01984448
February 7, 2000
William Keyes, )
Complainant, )
)
v. ) Appeal No. 01984448
)
William J. Henderson, ) Agency No. 1J-6011052-96
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid-Western Areas) )
Agency. )
____________________________________)
DECISION
William Keyes (complainant) filed an appeal with this Commission from a
final decision of the United States Postal Service (agency) concerning
his 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> Complainant's claim of discrimination is based upon his
physical disability (Gerd Gastro Disease Disorder), when on January 3,
1996 he was issued a notice of removal and subsequently removed from
employment in February, 1996. The appeal is accepted in accordance with
EEOC Order No. 960.001.
On May 1, 1996, complainant filed a timely formal EEO complaint claiming
discrimination as referenced above. Complainant's complaint was accepted
for processing. Following an investigation, complainant requested an
agency decision without a hearing. Accordingly, on March 27, 1998,
the agency issued a final decision of no discrimination. It is this
agency decision that complainant now appeals.
The record indicates that complainant suffered a work related back injury
in 1986 which resulted in his placement on light duty.<2> On March 15,
1995, complaint was removed from his light duty since the United States
Department of Labor, Office of Worker's Compensation Programs (OWCP) had
ruled that complainant no longer suffered from his work related injury.
On January 3, 1996, complainant received a Letter of Removal due to
complainant's irregular schedule between October 16, 1995 and December
26, 1995. Specifically, the record shows that during this period,
complainant was absent without leave (AWOL) or took leave without pay
(LWOP) on the following occasions: (1) 10/16/95 (8.0 hours AWOL); (2)
10/24/95 (8.0 hours AWOL); (3) 11/1/95 (3.65 hours LWOP); (4) 11/17/95
(8.0 hours LWOP); (5) 11/20/95 (8.0 hours AWOL); (6) 11/22/95 through
11/29/95 (40.0 hours LWOP); (7) 11/30/95 through 12/13/95 (32.0 hours
LWOP); (8) 12/21/95 (8.0 hours AWOL); and (9) 12/26/95 (8.0 hours AWOL).
The record shows that complainant was issued the following disciplinary
action prior to his notice of removal: (1) Letter of Warning on 10/14/93
for Failure to Maintain a Regular Schedule; (2) 7-Days Suspension
on 11/22/94 for Failure to Maintain a Regular Schedule; (3) 14-Days
Suspension on 2/16/95 for Failure to Maintain a Regular Schedule; and (4)
14-Days Suspension on 5/9/95 for Failure to Maintain a Regular Schedule.
Complainant provided the agency with the following in response to his
absences in the fall of 1995: (1) a note from a dental center which
excused complainant for his absence on November 17, 1995 and explained
that complainant had a tooth extraction on that day; and (2) a note
from a physician stating "Patient has been sick since November 22, 1995
of stomach pain. He may return to work on December 15, 1995."<3> The
record also indicates that when the agency received the above-referenced
medical documentation from complainant, those specific absences were
changed from "disapproved" to "approved." Complainant did not provide
the agency with medical documentation with respect to the remaining
absences referenced above.
Complainant claims that he submitted medical documentation for his
illness and was issued a notice of removal while other employees were
not issued notices of removal after submitting medical documentation
for their sicknesses. However, the record shows that of the comparison
employees (C1, C2, C3, and C4): (1) C1 had 6 infractions and was issued a
7-Days Suspension; (2) C2 had 7 infractions but was approved for Family
Medical Leave Act leave and was not issued any disciplinary action:
(3) C3 had one infraction and was not issued disciplinary action;
and (4) C4 had 11 infractions and was issued a Notice of Removal.
Complainant had 10 infractions and was also issued a Notice of Removal.
According to the agency's final decision, complainant failed to establish
a prima facie case of disability discrimination because complainant
presented no facts which show that there is a causal connection between
the complainant's medical condition and the issuance of the disciplinary
action for Failure to Maintain a Regular Schedule. Moreover, the agency
found that complainant failed to present similarly situated employees who
fell outside of his protected class and who were treated more favorably.
In addition, the agency determined that complainant did not present
any evidence of discriminatory animus and failed to sufficiently rebut
the agency's articulated legitimate and non-discriminatory reasons for
its employment action. Accordingly, the agency found no discrimination
based upon disability.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the agency accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. In addition, we find that complainant
failed to present sufficient evidence which supports a finding that he is
a qualified individual with a disability under the Rehabilitation Act.
See 29 C.F.R. � 1630.2.<4> Specifically, we note that the medical
documentation referenced above is insufficient to prove that complainant's
alleged physical disability consists of an impairment which substantially
limits one or more major life functions. Accordingly, we find, in
addition to the agency's rationale, that complainant failed to prove a
prima facie case of disability discrimination because he failed to prove
that he was a qualified individual with a disability under the meaning
of the Rehabilitation Act.
Since complainant fails to raise any arguments on appeal, we discern no
basis to reverse the agency's finding of no discrimination. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
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:
2/7/00
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 evidence of record does not support a finding that this back injury
constituted a disability within the meaning of the Rehabilitation Act.
3 This is the only medical documentation provided in the record which
pertains to complainant's alleged disability.
4 Pursuant to the Rehabilitation Act Amendments of 1992, the employment
standards of the Americans with Disabilities Act (ADA) apply to all
non-affirmative action employment discrimination claims filed by federal
applicants or employees with disabilities under section 501 of the
Rehabilitation Act. Pub. L. No. 102-569 � 503(b), 106 Stat. 4344 (1992)
(codified as amended at 29 U.S.C. � 791(g) (1994)).