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