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.