William L. Vanderhorst, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01976897 (E.E.O.C. Jan. 21, 2000)

01976897

01-21-2000

William L. Vanderhorst, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.


William L. Vanderhorst v. United States Postal Service

01976897

January 21, 2000

William L. Vanderhorst, )

Complainant, )

) Appeal No. 01976897

v. ) Agency No. 4D-290-1058-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid-Atl. Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his Equal Employment Opportunity (EEO) complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and � 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

Complainant alleges that he was discriminated against on the bases of sex

(male), physical disability (chronic lower back pain), mental disability

(post traumatic stress disorder; panic disorder; and recurrent depression)

and in reprisal for prior EEO activity when: (1) on February 12, 1996,

he was physically assaulted by the Acting Supervisor; and (2) on March

25, 1996, he was placed in an Emergency Off Duty Station where he was not

allowed to perform his regular duties. The Commission accepts the appeal

in accordance with EEOC Order No. 960.001. For the following reasons,

we affirm the FAD as clarified herein.

The record reveals that during the relevant time, complainant was

employed as a Full Time City Letter Carrier (PS-05) at the agency's

Mt. Pleasant, South Carolina facility. Believing he was discriminated

against, complainant sought EEO counseling and subsequently filed a

complaint on April 19, 1996. At the conclusion of the investigation,

complainant was granted thirty days to request a hearing before an EEOC

Administrative Judge. When complainant failed to request a hearing

within the thirty day time period, the agency issued a final decision

finding no discrimination.

The FAD found that complainant failed to establish a prima facie case

of discrimination on any of his alleged bases.<2> In reaching this

conclusion, the FAD found that complainant failed to present evidence:

(1) that he was treated less favorably than similarly situated employees

outside of his protected classes; (2) that the agency officials

responsible for the alleged discriminatory actions were aware of his

prior protected activity; or (3) that he had either a physical or mental

disability within the meaning of the Rehabilitation Act. It is from

this decision complainant now appeals. On appeal, complainant contends

that his medical condition is "on going." The agency requests that we

affirm its FAD.

Complainant's version of the alleged assault and the Acting Supervisor's

version of the alleged assault are completely different. Complainant

and the Acting Supervisor had a discussion on the workroom floor

concerning complainant's request for auxiliary assistance. Because of

a disagreement, they moved the conversation into a back office.

Complainant alleges that the Acting Supervisor threw him against the

office door. The Acting Supervisor alleges that complainant violently

slammed the office door, lost control of his temper and subsequently

used his hands to prevent the Acting Supervisor from leaving.

The Acting Supervisor denies threatening complainant although admits

that during his attempt to get out of the office, they may have had

physical contact. A police report stated that there was no evidence of

an injury to complainant's head, but a medical report found evidence of

a 3 centimeter lesion, raised and tender, on the back of complainant's

skull. Accordingly, we find that complainant was involved in a physical

altercation with the Acting Supervisor which resulted in an injury to

his head on February 12, 1996.

Sex Discrimination and Retaliation

Based on the standards set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253-256 (1981); 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 complainant failed

to establish a prima facie case of sex discrimination or retaliation.

In reaching this conclusion, we note that complainant failed to name a

similarly situated female employee, much less one who was treated more

favorably under similar circumstances. Moreover, we infer that the

Acting Supervisor's physical contact with complainant was motivated,

more likely than not, by self defense rather than discriminatory animus.

We also find that neither the Acting Supervisor who injured complainant

nor the Officer in Charge who placed complainant in the Emergency Off

Duty Station had ever been named as a Responsible Management Official in

complainant's prior complaints; nor is there any evidence to rebut their

testimony that they had no knowledge of complainant's prior EEO activity.

Disability Discrimination

The burdens of proof required in a disparate treatment claim brought

pursuant to the Rehabilitation Act are modeled after those used in Title

VII law. Prewitt v. United States Postal Service, 662 F.2d 292 (5th

Cir. 1981). In order to establish a prima facie case of disability

discrimination, complainant must show that: (1) he is a "qualified

individual with a disability"; (2) he was treated less favorably from

individuals not in his protected group; and (3) the circumstances give

rise to the inference that the difference in treatment was based on

his disability. 29 C.F.R. � 1630.2(m); Loniello v. Department of the

Air Force, EEOC Appeal No. 01951539 (September 19, 1996).<3>

We find that complainant has failed to present evidence that his back

condition substantially limits a major life activity. However, the record

does contain medical evidence that complainant's mental disabilities

have caused him to experience considerable difficulty managing the tasks

of daily living. Accordingly, we find that based on his psychological

impairments, complainant is an individual with a disability, and that

based on his past performance and the absence of any indication otherwise,

he is qualified to perform the essential functions of his position.

However, complainant has not demonstrated, either in regard to the

physical altercation or in regard to the Emergency Off Duty status, that

he was treated less favorably under similar circumstances than similarly

situated non-disabled employees. Furthermore, there are no circumstances

which warrant an inference of disability discrimination in light of the

fact that neither the Acting Supervisor nor the Officer in Charge knew of

complainant's disability or perceived complainant as a disabled employee.

The Commission does not condone physical altercations in the workplace.

However, complainant has not established, by a preponderance of the

evidence, that the agency's conduct was motivated by discriminatory or

retaliatory 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 as clarified.

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 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 agency investigated the merits of both claims. However, the FAD

initially dismissed complainant's second claim as moot since effective

April 22, 1997, the agency rescinded the emergency placement and completed

the necessary documentation for complainant to receive back pay with

interest for the period in question. However, we note that in his formal

complaint, complainant requested compensatory damages. If complainant

were to prevail on this claim, he may be entitled to compensatory damages.

As such, we find that the effects of the alleged discrimination have not

been completely eradicated and that the claim therefore is not moot.

See Miller v. Department of Health and Human Services, EEOC Request

No. 05970174 (August 26, 1998); Pritt v. United States Postal Service,

EEOC Request No. 05950792 (July 3, 1997). Therefore, the agency's decision

to dismiss claim No. 2 was improper, and we will review the FAD's findings

on the merits of both claims.

3 The 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.