01995464
01-25-2002
Rogelio De Leon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rogelio De Leon v. United States Postal Service
01995464
January 25, 2002
.
Rogelio De Leon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995464
Agency No. 1-G-756-0056-98
DECISION
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., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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. Complainant alleged that he was discriminated against on
the bases of sex (male), national origin (Mexican-American), age (49)
and disability (diabetic/high blood pressure) when on May 19, 1998,
he was removed from the agency.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk, PS-05, at Dallas Bulk Mail Center,
Dallas, Texas, facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on July 30, 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to prove a
prima facie case of discrimination based on sex, national origin, age
and disability. Specifically, the agency stated that even if complainant
had established a prima facie case, management articulated a legitimate
nondiscriminatory reason for its action. The agency alleged that
complaint was removed from the agency due to complainant's unsatisfactory
services, failure to meet the agency attendance requirements and failure
to follow instructions. Specifically, the agency noted that on March 1,
1997, complainant was scheduled to report for duty at 2200 hours; however,
he did not report for duty and remained in an AWOL status since that time.
The agency also noted that complainant was released to return to duty
on May 21, 1997, with no restrictions, and that he did not report.
The agency further stated that although complainant was sent a
Predisciplinary meeting notice on June 28, 1997, instructing him
to contact his immediate supervisor, he failed to follow these
instructions and did not provide medical documentation for his poor
attendance. On January 8, 1998 and March 26, 1998, complainant was
again contacted to report for a Predisciplinary meeting concerning his
employment statu. Complainant again failed to report or provide medical
documentation.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to establish a prima
facie case of sex, national origin, age or disability discrimination
because he failed to establish that he was treated differently than
similarly situated individuals not in his protected group. In reaching
this conclusion, we note that complainant failed to establish that
individuals outside of his protected class were not required to submit
medical documentation to support their continued absences, or otherwise
establish that others were not disciplined for failure to supply requested
medical documentation. Complainant alleged that two specific employees
were allowed to report to work after several months of absence. However,
those employees returned to duty from the rolls of OWCP, and therefore did
not have to be cleared through medical offices prior to returning to work.
Therefore, those employees are not similarly situated to complainant.
Complainant failed to otherwise establish an inference of discrimination.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant was removed from the Postal Service when he
failed to report to work or provide medical documentation in response
to the agency's Predisciplinary meeting notice. The record also shows
that complainant was removed after management made numerous attempts
to contact complainant to determine why he was not reporting to work,
and that complainant never contacted his supervisor or submitted
documentation. Finally, complainant provided no evidence of a
discriminatory motive because of his sex, national origin, age or
disability.
Assuming arguendo, that complainant is a person with disability,
complainant further failed to provide requested medical
documentation. Complainant has failed to present sufficient evidence
that would persuade us that the agency discriminated against him on
the basis of disability or that the requests for medical documentation
were not appropriate. The record shows that complainant's on-the-job
medical limitations were unknown to management until after the removal
was issued, because complainant never submitted any documentation during
his working period.
Therefore, after a careful review of the record, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 25, 2002
__________________
Date