01981939
05-23-2001
Daniel J. O'Dell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Region), Agency.
Daniel J. O'Dell v. United States Postal Services
01981939
May 23, 2001
.
Daniel J. O'Dell,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(New York Region),
Agency.
Appeal No. 01981939
Agency No. 1A-126-1689-93
Hearing No. 160-95-8655X
DECISION
Daniel J. O'Dell (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of mental disability (Vietnam Veteran), in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq. The appeal is accepted in accordance with 29 C.F.R. �1614.405.
For the following reasons, the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether complainant was subject to discrimination
on the aforementioned basis when he was terminated during his probationary
period on August 21, 1993.
BACKGROUND
The record reveals that on June 26, 1993, complainant was hired by
the agency as a Custodial Laborer at its Mid-Hudson Processing and
Distribution Center. On August 21, 1993, complainant was terminated by
the agency during his probationary period because he was purportedly
confrontational and unprofessional in his conduct. Specifically,
the agency found after conducting an investigation that complainant
threatened a co-worker by glaring and shaking his fist at him.
In his affidavit, complainant averred that because he is a Vietnam
Veteran, the agency officials perceived him to be mentally disabled.
He adds that when he was hired, he submitted documents showing that
he is a 30% disabled veteran. Within two weeks of his tenure with the
agency, complainant states that his immediate supervisor engaged him in
conversation about his veteran background. Complainant also stated that
unlike other probationary employees, he was not given a 30 day evaluation.
When it appeared that a co-worker was getting more overtime than he did,
complainant states that he complained to a Union Representative, who in
turn spoke to his immediate supervisor about equalizing the overtime work.
Shortly thereafter, complainant contends that the Supervisor, Maintenance
Operations, who is also his immediate supervisor, called him into his
office and asked him if he had threatened his co-worker. Complainant
attest that although he denied the accusation, his immediate supervisor
told him that he believed his accuser and proceeded to terminate him.
Complainant opined that the Supervisor, Maintenance Operations
terminated him because he was afraid that complainant would turn out
to be like other disabled veterans who he could not fire because they
were permanent employees. Complainant also opined that the Supervisor,
Maintenance Operations used his co-worker to fabricate a story against
him since there was never any verbal or physical confrontation between
him and his co-worker. For the record, complainant also noted that he
is not disabled and that his 30% disability status does not affect any
of his major life activities.
At the conclusion of the investigation, the agency informed complainant of
his right to request a hearing or a final agency decision. On November
15, 1995, complainant requested a hearing with an Administrative Judge
(AJ) of the EEOC. In a recommended decision dated, November 17, 1997,
the AJ held that complainant failed to meet the definition of a disabled
individual as defined in 29 C.F.R. �1614.203. <1> The AJ also held
that complainant's assertion that a Vietnam Veteran status equates
to having a perceived disability was without merit within the context
of the Rehabilitation Act. Moreover, the AJ found that even assuming
arguendo that complainant was able to establish that he was regarded by
the agency as being disabled, he still failed to prove a prima facie
case of discrimination because he did not show that any probationary
employee outside of his protected group was treated more favorably.
In a FAD dated December 1, 1997, the agency adopted the AJ's recommended
finding of no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant protested the length of time it has taken to
process his complaint and indicated that he was unfairly denied discovery
rights at the hearing stage. Further, complainant also contends that
there were many facts in dispute in this case which precluded the
issuance of a summary judgment decision by the AJ. In this regard,
complainant contends that the issue of whether or not he is a disabled
employee is a fact in dispute in this case. Complainant also contends
that the employees who were cited as comparatives by the agency were
not similarly situated to complainant because they were both hired
after complainant was terminated and subsequent to the filing of his
EEO complaint. Additionally, complainant contends that the ground upon
which he was terminated is in itself a fact in dispute. The supporting
arguments raised by complainant in support of this contention are mainly
a reiteration of the arguments that he raised earlier in the complaint
process.
In its appeal statement, the agency requested that the Commission affirm
its FAD.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
In the case at hand, we find that the AJ acted properly when he issued
a summary decision without holding a hearing given that the case was
fully investigated and there existed no genuine issue of material fact
in this case. In this regard, we find that complainant did not raise
any genuine issue of material fact which would cause the Commission to
reverse the AJ's finding of no discrimination. In their statements to
the EEO Investigator, the Supervisor, Maintenance Operations and the
Manager of Maintenance attested that based on their investigation they
determined that complainant engaged in threatening behavior toward his
co-worker which justified his termination during his probationary period.
Despite complainant's arguments to the contrary, we will not second guess
the appropriateness of the agency's disciplinary action. In making a
determination of discrimination, the Commission has held that the trier of
fact must look at the motivation of the decision maker as opposed to the
decision maker's business judgment. See Dorothy Schaeffer v. Department
of Transportation, EEOC Appeal No. 01A10518 (February 18, 2001); see
also Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987). Whether or not a
thorough investigation on complainant's alleged threat was conducted is
not dispositive of the discrimination claim in this case. The agency
has stated that it believed that complainant engaged in inappropriate
conduct and it took action to address that conduct. Unless complainant
can show that this articulated reason is a mere pretext for discriminatory
conduct, he cannot prevail on his allegation of discriminatory treatment.
In keeping with the AJ's decision, we find that complainant was not
successful in his effort to show pretext. The Supreme Court has held
that in making a finding on pretext, it is not sufficient �to disbelieve
the employer; the fact finder must believe the plaintiff's explanation
of intentional discrimination.� St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
After a careful review of the record, the Commission finds that the AJ's
decision properly summarized the relevant facts and laws in this case.
We discern no reason to disturb the AJ's decision. Accordingly, the
agency's finding of no discrimination is AFFIRMED.
CONCLUSION
Therefore, the agency's finding of no discrimination in the termination
of complainant is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
5/23/01
__________________
Date
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
______________________________
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.