Natwarlal Patel, Appellant,v.Hearing No. 210-97-6088X Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionMay 20, 1999
01974764 (E.E.O.C. May. 20, 1999)

01974764

05-20-1999

Natwarlal Patel, Appellant, v. Hearing No. 210-97-6088X Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Natwarlal Patel, )

Appellant, )

)

v. ) Appeal No. 01974764

) Agency No. 1-F-941-1095-96 William J. Henderson, )

Hearing No. 210-97-6088X

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

______________________________)

DECISION

On May 23, 1997, Natwarlal Patel (appellant) timely appealed the final

decision of the United States Postal Service (agency), dated May 15,

1997, concluding he had not been discriminated against in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq., the Age Discrimination in Employment Act (ADEA) of 1967, as

amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. In his complaint, appellant alleged

that agency officials had discriminated against him on the bases of his

national origin (Indian), age (DOB: 05-05-31), disability (back injury)

and/or retaliation for engaging in prior EEO activity, when he was removed

from his casual appointment on May 6, 1996. This appeal is accepted in

accordance with the provisions of EEOC Order No. 960.001.

At the time this matter arose, appellant had been employed by the agency

as a casual employee since September 16, 1995, at the Processing and

Distribution Center in San Francisco, California. By letter dated May

2, 1996, appellant's supervisor informed him that he would be terminated

effective May 6, 1996, for "unsatisfactory performance." The supervisor

testified that she had supervised appellant for approximately one month

before she issued the letter of removal. She said that she issued the

letter because appellant had been absent without official leave (AWOL) for

a two-week period without submitting documentation to justify his absence.

Appellant testified that in April 1996, he was assigned duties on a

letter-sorting machine which required him to standing for long periods,

unlike his previous sit-down assignments with the agency. As a result,

he started experiencing back pain due to an exacerbation of a previous

back injury. He said that on April 23, 1996, he said that he could not

go to work because of the back pain. However, the record establishes

that he did not seek medical attention. Appellant did not return to work

until May 3, 1996. On that date, he went to the agency's medical unit

and was transported to the hospital. There he was diagnosed with acute

lumbar strain. The supervisor testified that appellant never notified

her during the entire period between April 23 and May 2, 1996, that he

would be absent or the reason for that absence. Moreover, she testified

that appellant was unable to provide adequate medical support for his

absence because he did not seek medical attention until May 3, 1996.

On June 15, 1996, appellant filed a formal EEO complaint with the

agency, alleging that the agency had discriminated against him as

referenced above. The agency accepted the complaint and conducted

an investigation. At the conclusion of the investigation, appellant

requested an administrative hearing before an Equal Employment Opportunity

Commission (EEOC) administrative judge (AJ).

On February 22, 1997, following a hearing at which three witnesses

testified, the AJ issued a decision concluding no discrimination had

occurred on any of the bases alleged. In that decision, the AJ first

found appellant failed to establish a prima facie case of disability

discrimination because the evidence did not show that he was an

individual with a disability within the meaning of the Rehabilitation Act.

With regard to appellant's national origin and age claims, the AJ also

found appellant failed to establish a prima facie case of discrimination

because there was insufficient evidence that any other similarly situated

female employee was treated more favorably. Finally, with regard

to appellant's reprisal claim, the AJ concluded that no inference of

unlawful retaliation was established because the evidence indicated that

the supervisor was unaware of appellant's prior EEO activity. Moreover,

the AJ concluded that the agency successfully rebutted any initial

inference of discrimination/retaliation which might have been raised

by appellant with its articulation of legitimate, nondiscriminatory

reasons for the decision to remove appellant. The AJ went on to hold

that appellant failed to meet his burden of proving, by a preponderance

of the evidence, that the agency's articulated reasons for its actions

in this matter were unbelievable or that its actions were more likely

motivated by discriminatory factors.

On May 15, 1997, the agency adopted the findings and conclusions of the

AJ and issued a final decision finding no discrimination. It is from

this decision that appellant now appeals.

After a careful review of the record in its entirety, the Commission finds

that the AJ's recommended decision sets forth the relevant facts and

properly analyzes the case using the appropriate regulations, policies

and laws. Based on the evidence of record, the Commission discerns

no basis to disturb the AJ's finding of no discrimination. Nothing

proffered by appellant on appeal differs significantly from the

arguments raised before, and given full consideration by, the AJ.

The Commission notes that the AJ specifically found the testimony of

the supervisor to be credible. The credibility determinations of the AJ

are entitled to deference due to the AJ's first-hand knowledge, through

personal observation, of the demeanor and conduct of the witnesses

at the hearing. Esquer v. United States Postal Service, EEOC Request

No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,

EEOC Request No. 05900589 (July 26, 1990). The Commission, after an

independent review of the record, found no significant evidence to

contradict the AJ's credibility findings.

Accordingly, it is the decision of the Equal Employment Opportunity

Commission to AFFIRM the agency's final decision which adopted the AJ's

finding of no discrimination or unlawful retaliation.

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. 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. 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:

May 20, 1999

__________________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations