John D. Jackson, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas) Agency.

Equal Employment Opportunity CommissionNov 13, 1998
01962632 (E.E.O.C. Nov. 13, 1998)

01962632

11-13-1998

John D. Jackson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas) Agency.


John D. Jackson v. United States Postal Service

01962632

November 13, 1998

John D. Jackson, )

Appellant, )

)

v. ) Appeal No. 01962632

) Agency No. 1G-754-1015-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest Areas) )

Agency. )

_______________________________________)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment

Opportunity Commission (EEOC or Commission) from the final agency

decision concerning his equal employment opportunity (EEO) complaint,

which alleged 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, 42 U.S.C. � 791 et seq.

The appeal is accepted by the Commission in accordance with the provisions

of EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented is whether appellant proved, by a preponderance of

the evidence, that the agency discriminated against him on the basis of

race (Black), national origin (African-American), and physical disability

(carpal tunnel syndrome and tendinitis), when on October 18, 1994, he was

denied work within his medical restrictions due to an on-the-job injury.

BACKGROUND

In a formal complaint filed on December 13, 1994, appellant alleged that

the agency discriminated against him as alleged above. Following the

agency's investigation, appellant was notified of his right to request a

hearing before an EEOC administrative judge (AJ) or an immediate final

agency decision (FAD). Appellant received this notice on July 6, 1995,

and failed to respond. Thus, in accordance with 29 C.F.R. � 1614.110

et seq. the agency issued a FAD on the merits of appellant's complaint.

In its FAD, the agency found that appellant failed to establish that he

was discriminated against as alleged, because he failed to establish a

prima facie case of discrimination in that the named comparison employees

were not found to be similarly situated.

ANALYSIS

Disability Discrimination

Appellant can establish a prima facie case of disability discrimination

by establishing that: (1) he is an individual with a disability as

defined by EEOC Regulation 29 C.F.R. �1614.203(a); (2) he is a qualified

individual with a disability as defined by 29 C.F.R. �1614.203(a)(6); and

(3) he was subjected to an adverse personnel action under circumstances

giving rise to an inference of disability discrimination. See Prewitt

v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).

EEOC Regulation 29 C.F.R. �1614.203(a) states that an individual

with a disability is one who has a physical or mental impairment

which substantially limits one or more of such individual's major life

activities, has a record of such an impairment, or is regarded as having

such an impairment. Major life activities include caring for one's self,

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

learning, and working. A "qualified individual with a disability" is

a disabled individual who, with or without reasonable accommodation,

can perform the essential functions in question without endangering the

health and safety of the individual or others.

The medical evidence of record establishes that appellant was medically

restricted from generally lifting/carrying no more than 24 pounds,

specifically lifting with his right arm, intermittent sitting, kneeling,

bending, stooping, twisting, pushing, pulling or simple grasping

with his right arm, and required to wear a wrist splint at all times.

Notwithstanding, the record reflects that appellant was given limited

duties within his medical restrictions as an accommodation.

However, the medical record also demonstrates appellant sought extensive

medical treatment for Major Depression and a drug/alcohol problem. On

June 14, 1994, appellant admitted himself to the hospital for Major

Depression. Thereafter, while on administrative leave, appellant was

called and told he would be denied work on the clock within his medical

restrictions. The agency decision to eliminate appellant's limited

duties was based on information received from one of appellant's

psychiatrist's regarding threats appellant had made against his

Supervisor and the psychiatrist's belief that appellant was capable of

carrying out the threat. Further testimony revealed that the Supervisor

was also contacted by appellant's psychiatrist. The Supervisor testified

that the psychiatrist felt that he should take appellant's threats very

seriously and protect himself since she (the psychiatrist) knew appellant

kept a gun in his car.

We find that appellant has failed to establish that he is a qualified

individual with a disability as defined by the regulations. The record

establishes that he posed a threat to both himself and his supervisor.

As such, appellant failed to be covered under the Act.

Race and National Origin Discrimination

Appellant's allegation of reprisal discrimination constitutes a claim of

disparate treatment which is properly analyzed under the three-tier order

and allocation of proof as set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

The McDonnell Douglas analytical paradigm need not be adhered to in all

cases. In appropriate circumstances, when the agency has established

legitimate, nondiscriminatory reasons for its conduct, the trier of fact

may dispense with the prima facie inquiry and proceed to the ultimate

stage of the analysis, i.e., whether the complainant has proven by

preponderant evidence that the agency's explanations were a pretext for

discrimination. See United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department of

Transportation, EEOC Request No. 05900159 (June 28, 1990). Since the

agency has articulated a legitimate, nondiscriminatory reason for its

action, the Commission will consider whether the agency's explanations

for its actions were a pretext for discrimination.

Considering the facts of this case, which need not be repeated here, and

a thorough review of the entire record, we find that the record is devoid

of any evidence which would suggest that appellant was denied work for

any reason other than his threats of violence towards his supervisor and

the agency's responsibility to provide a safe working environment for all

of its employees. After a careful review of the record, the Commission

finds that appellant failed to establish that the agency's reason for

its action was pretext for discrimination. We note there are no new

contentions on appeal. Accordingly, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision.

CONCLUSION

Accordingly, it is the decision of the EEOC to AFFIRM the agency's final

decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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. Both the request and the civil action must be Filing a request for

an attorney does not extend your time in which to file a civil action.

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

Nov 13, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations