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