Frank S. Mattia, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 15, 2003
01A03458 (E.E.O.C. May. 15, 2003)

01A03458

05-15-2003

Frank S. Mattia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Frank S. Mattia v. United States Postal Service

01A03458

May 15, 2003

.

Frank S. Mattia,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03458

Agency No. 4H-300-0064-99

DECISION

INTRODUCTION

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 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The record reveals that during the relevant time, complainant was

employed as a Letter Carrier, PS-5 at the agency's Northridge Post

Office in Atlanta, Georgia. Complainant sought EEO counseling and

subsequently filed a formal complaint on March 24, 1999, alleging

that he was discriminated against on the bases of race (Caucasian)

and disability (Chronic Active Hepatitis C) when: (1) he was issued a

Letter of Warning November 30, 1998, for attendance deficiencies; (2)

he had a change in reporting schedule beginning December 2, 1998; (3) he

was required to provide medical documentation for absences on December

4 and 9, 1998; and (4) he was not afforded accommodations relating to

his medical limitations during the period December 9-15, 1998. At the

conclusion of the investigation, complainant was informed of his right to

request a hearing before an EEOC Administrative Judge or alternatively,

to receive a final decision by the agency. Complainant requested that

the agency issue a final decision. In its FAD, the agency concluded

that complainant failed to establish that he was subjected to disparate

treatment based on his race and/or disability.

On appeal, complainant contends that he was discriminated against

as alleged. Complainant, through his representative (Representative),

argues that he was made to perform unsafe acts while taking different

types of medication. The Representative elaborates on complainant's

alleged disability and notes that complainant was subjected to harassment

daily from November 30, 1998 through December 14, 1998. The agency

requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Disability Discrimination

To bring a claim of disability discrimination, complainant must first

establish that he is an individual with a disability within the meaning

of the Rehabilitation Act. An individual with a disability is one who

has, has a record of, or is regarded as having a physical or mental

impairment that substantially limits one or more of his/her major life

activities. 29 C.F.R. � 1630.2(g).

Major life activities include functions such as caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. � 1630.2(i). The term "substantially

limits" means: unable to perform a major life activity that the average

person in the general population can perform; or significantly restricted

as to the condition, manner or duration under which an individual can

perform a particular major life activity as compared to the condition,

manner, or duration under which the average person in the general

population can perform that same major life activity. 29 C.F.R. �

1630.2(j)(1). Factors considered in determining whether an individual

is substantially limited in a major life activity include: the nature

and severity of the impairment; the duration or expected duration of

the impairment; and the permanent or long-term impact, or the expected

permanent or long-term impact of or resulting from the impairment. 29

C.F.R. � 1630.2(j)(2).

In the case at hand, the Commission finds that complainant has failed to

establish that he is an individual with a disability for purposes of the

Rehabilitation Act. Complainant provided the investigation with a medical

document stating that he has been diagnosed with Chronic Hepatitis C.

He also averred that the medication he was on at that time would make

him ill and that he was told not to drive until he knew how he would

react to the medication. On appeal, complainant provided the Commission

with the medical warnings for the medication he was taking. We note that

complainant does not explain to what extent he is affected by the possible

side effects. The Representative states on appeal that complainant has

been on light duty due to his impairment. However, complainant failed

to provide more specific information as to his limitations which led to

his light duty status. The Representative notes in his appeal argument

that, "due to poor liver functions, complainant is unable to withstand

everyday activities such as walking, standing, driving, and working

for extended periods of time without being overwhelmed with chronic

fatigue" and that he has "major problems with concentration, which leads

to mental fatigue and frustration." Complainant does not elaborate

further on these limitations. We note that complainant clearly has a

serious medication condition, however, he does not provide any further

information in order to establish that he is substantially limited in the

major life activities of walking, standing, working, or concentration.

Therefore, we conclude that complainant failed to establish that he is

an individual with a disability covered under the Rehabilitation Act.

We also note that complainant does not put forth any argument or evidence

to show that he has a record of such an impairment or that the agency

regarded him as disabled.

Race-Based Discrimination

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. United States

Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

To the extent complainant claimed that the agency's actions were

based on his race, we find that the agency articulated legitimate,

nondiscriminatory reasons for its actions. The Supervisor averred that

she gave complainant two warnings regarding his attendance, the first

coming in April 1998. Since March 1998, his attendance did not improve.

Therefore, the LOW alleged in claim (1) was issued. The Supervisor

also noted that complainant's official schedule was not changed as he

alleged in claim (2). His official reporting was 7:30 a.m. but most

of the time he was allowed to come in as early as 6:00 a.m. When the

Supervisor gave complainant the LOW, complainant told her that he would

slow down his work. Based on his statement regarding performance, she

told him to come in at his regular start time at 7:30 a.m. As to claim

(3), the Supervisor indicated that on the dates in question, complainant

informed her that he could not go on the street to deliver mail because

of medication he was taking. She asked for medication documentation to

support his reason for not being able to complete his duties. Finally,

as to claim (4), the Supervisor stated that complainant was provided

with an accommodation from December 9 - 15, 1998, in that he was not

asked to drive his route. The agency limited complainant's duties to

casing his route and did not require him to drive it.

The burden now shifts to complainant to establish that the agency's

reasons were pretextual. Upon review of the record, we find that

complainant failed to do so. Therefore, we find that complainant has

not shown that the agency discriminated against him based on his race.

Harassment

Complainant also argued that claims (1) through (4), reviewed as

a whole, constituted unlawful harassment. It is well-settled that

harassment based on an individual's disability and race are actionable.

In order to establish a claim of harassment under those bases, the

complainant must show that: (1) he is a qualified individual with a

disability covered under the Rehabilitation Act and/or belongs to the

statutorily protected class; (2) he was subjected to unwelcome conduct;

(3) the harassment complained of was based on his disability and/or

race; (4) the harassment had the purpose or effect of unreasonably

interfering with his work performance and/or creating an intimidating,

hostile, or offensive work environment; and (5) there is a basis for

imputing liability to the employer. See Henson v. City of Dundee, 682

F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician

Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp.,

247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,

EEOC Notice No. 915.002 (March 8, 1994).

As to his claim of disability-based harassment, we find that complainant

failed to establish the first element. Based on our conclusion above,

complainant has not shown that he is covered under the Rehabilitation Act.

Therefore, we determine that complainant has not established that he was

subjected to a hostile work environment based on his alleged disability.

Further, as to complainant's claim of race-based harassment, we find

that complainant failed to show that the alleged harassment was based

on his race, as required in the third element of a claim of harassment.

Accordingly, we conclude that complainant has not established that he

was subjected to race-based harassment.

CONCLUSION

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.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

May 15, 2003

__________________

Date