01A12195
06-11-2002
Carl L. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Carl L. King v. United States Postal Service
01A12195
June 11, 2002
.
Carl L. King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A12195
Agency No. 4D-270-0116-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973<1> (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of race (Black)
and disability (Crohn's disease and depression) when, from April 3, 1999
to May 7, 1999, he was placed on administrative leave (AL). For the
following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as an EAS-19 Manager at the agency's Capital Station, Raleigh, North
Carolina (�facility�). Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on July 28, 1999. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge (AJ) or alternatively, to receive a final
decision by the agency. Complainant initially requested a hearing,
but prior to the AJ's convening of the hearing, complainant withdrew
his request for a hearing. Subsequently, the agency issued a FAD.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race discrimination, as he failed to cite
any similarly situated employees outside of his protected group who
were treated differently under similar circumstances. Considering
complainant's claim of disability discrimination, the FAD noted that the
medical evidence stated that complainant had exacerbated Crohn's disease
and untreated major depressive disorder. Complainant was found medically
unfit for duty in March 1999 following a Fitness for Duty Examination
(FFD), and his physicians concluded in July 1999 that he was permanently
disabled from any employment. The FAD found that complainant was not an
individual with a disability, as at the time of the alleged discriminatory
actions, he was medically unfit to perform the essential functions of
his Manager position or any other position. In addition, the FAD found
that the agency articulated legitimate, nondiscriminatory reasons for
its actions in placing complainant on AL during the period at issue.
Complainant has made no new contentions on appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the Commission agrees with the FAD that complainant
failed to establish a prima facie case of race discrimination, as he
failed to establish that there were any similarly situated employees
not in his protected group who were treated differently under similar
circumstances. In so finding, we note that the two (2) comparison
Managers cited by complainant were not similarly situated to him.
The record indicates that the facility's Acting Postmaster stated
complainant was placed on AL for showing �bizarre� behavior and for
making threats to two (2) of his supervisors<2>, while the comparison
Managers were not placed on AL as they did not engage in conduct similar
to that of complainant.
Addressing complainant's claim of disability discrimination, the
Commission finds that assuming, arguendo, that complainant demonstrated
that he is an individual with a disability and established a prima
facie case of discrimination, the agency articulated a legitimate,
nondiscriminatory reason for its action of placing complainant on AL.
In so finding, the Commission notes that the statement of the facility's
Acting Postmaster establishes that she placed complainant on AL With
Pay in February 1999 as she was concerned about his behavior and threats
he made to two (2) of his supervisors to the effect that he �felt like
shooting his supervisors.� See Affidavit B. Complainant then underwent
two (2) FFD Examinations in March 1999 and his physicians recommended
that he not return to work until there was further improvement in his
depression and an increased ability to tolerate the stresses of his job.
The record reflects that complainant was continued on AL until May 7,
1999, when he was informed that his AL With Pay status would cease based
on a medical examination stating that he could not return to work.
A review of the record establishes that complainant was placed on AL
With Pay due to his behavior and the alleged threats directed at his
supervisors. In addition, we agree with the FAD's finding that there
is no evidence in the record that complainant was placed on AL due to
discriminatory animus based on his disability.
The Commission notes that in addition to complainant's claim of
discrimination addressed in the instant decision, complainant's formal
complaint also alleged that the agency discriminated against him due to
disability and race when: (1) on January 28, 1999, he was placed on AL
until May 7, 1999; and (2) on May 7, 1999, the agency notified him that
pursuant to the results of a FFD Examination, he was found not medically
fit to return to duty and thus his AL status would end. On September
14, 1999, the agency issued a decision dismissing that part of issue
(1) which occurred before April 3, 1999, due to untimely EEO Counselor
contact. In addition, the agency's decision stated that issue (2) would
be addressed in a separate decision as that issue could be appealed to the
Merit Systems Protection Board. Complainant was notified in the FAD of
his appeal rights to the Commission. Complainant appealed the dismissal
to the Commission. In a letter dated December 7, 2000, the Commission
remanded these issues to the agency for consolidation with the remainder
of the complaint. See King v. USPS, EEOC Appeal No. 01997248 (December
7, 2000). However, as the agency had already issued its decision
dismissing that part of issue (1) which took place before April 3, 1999,
the agency took no action in response to the Commission's decision.
As such, the Commission will address complainant's appeal of the FAD's
partial dismissal of issue (1) in this decision.
After consideration of the entire record, we find that the agency
improperly dismissed that portion of issue (1) in complainant's complaint
which occurred before April 3, 1999 for untimely EEO Counselor contact.
The Commission has held that the time requirements for initiating EEO
counseling may be waived as to certain claims within a complaint when
the complainant alleges a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (December 28, 1990).
The Commission finds as complainant was placed on AL With Pay continuously
between January 28, 1999 and May 7, 1999, issue (1) as raised in
the complaint of discrimination concerns an interrelated matter that
comprises a single claim of discrimination. We find these matters are
part of a continuing violation, culminating with events that extend up
to the time complainant's AL With Pay was terminated on May 7, 1999.
Moreover, we note that the agency could not properly dismiss untimely
raised claims under the "reasonable suspicion" standard because there is a
common nexus between the entire span of events alleged in the complaint.
See Anisman v. Department of the Treasury, EEOC Request No. 05A00283
(April 13, 2001). Therefore, because the last chronological event
described in complainant's complaint occurred within forty-five days of
his initial EEO contact on May 19, 1999, we find that his contact was
timely with respect to issue (1) in its entirety.
However, considering complainant's claim that he was discriminated
against on the bases of race and disability when he was placed on
AL from January 28, 1999 through May 7, 1999, we again find that the
agency articulated a legitimate, nondiscriminatory reason for its action
in placing complainant on AL. Namely, we note the statement of the
facility's Acting Postmaster that complainant was placed on AL due to
his behavior and threats made to two (2) of his supervisors. As such,
the Commission finds that even considering complainant's claim in issue
(1) between January 28, 1999 and May 7, 1999, complainant has failed
to establish that he was placed on AL due to discriminatory animus.
In addition, as the agency has not addressed issue (2), the Commission
will not address that issue in the instant decision.
Therefore, after a careful review of the record and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 11, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 We note that two of complainant's supervisors alleged that complainant
stated to them that �with all the medication [he] was on, you never knew
when you might come into the office shooting; and [complainant] would
take out the supervisors first.� Investigative Report, at Affidavit B
and page 84.