01971802
03-03-1999
Steven M. Vivolo, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Steven M. Vivolo, )
Appellant, )
) Appeal No. 01971802
v. ) Agency No. 4E-980-1022-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Mr. Vivolo (hereinafter referred to as �Appellant�) timely initiated
an appeal to the Equal Employment Opportunity Commission (hereinafter
referred to as �EEOC�) of a final agency decision concerning his
complaint of unlawful employment discrimination on the bases of his age
(date of birth October 4, 1942) and his physical and mental disabilities,
including, but not limited to, (mild retardation, multi-mixed personality
disorder, paranoia disorder, bipolar disorder, hearing loss, pilonidal
cyst, back injury, numbness on tongue, right wrist scar with arthritis,
and angina pectoria), in violation of the Age Discrimination in Employment
Act 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. Appellant alleges
he was discriminated against when on December 19, 1995, he was denied
reinstatement with the Seattle, Washington Processing and Distribution
Center (hereinafter referred to as the �facility�). The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the final agency decision is AFFIRMED.
The record reveals that during the time in question, appellant was
unemployed, but had previously worked at the facility as a PS-03 Custodian
since July of 1974. On July 19, 1984, appellant received a notice of
proposed removal for failure to follow instructions and being absent
without leave. Based on his prior record of discipline, the decision
to remove appellant was upheld on August 1, 1984, and he was removed
from the facility on January 3, 1985.
Approximately eleven years later, on October 16, 1995, appellant
contacted the facility and requested reinstatement. On November 28,
1995, a Senior Personnel Services Specialist (hereinafter referred to as
�Personnel Specialist�) from the facility wrote appellant and asked him
to complete and submit an enclosed application package. On December
7, 1995, appellant completed and submitted his application package
and mailed it to the facility. On December 19, 1995, the Personnel
Specialist wrote a letter to appellant, informing him that his request for
reinstatement was denied due to his prior bad conduct with the agency.
During the investigation, the Personnel Specialist provided an affidavit,
and the agency provided records, which demonstrated that the agency
has consistently denied reinstatement to individuals with prior poor
performance or bad conduct. Appellant alleged that four co-workers
were treated more favorably, however the record demonstrates that
one individual was denied reinstatement just as appellant was. See
Investigative File, Exhibit 8e. Additionally, the summary of the
investigation states that the other individuals were not similarly
situated to appellant because none of them had stopped working for
the Postal Service, applied for reinstatement, and were accepted. See
Investigative Report, page 7.
Believing he was discriminated against because of his age and his
physical and mental disabilities, appellant sought equal employment
opportunity counseling and, subsequently, filed a formal complaint of
discrimination on January 29, 1996. The agency investigated appellant's
allegation, and informed appellant of his right to request a hearing
before an EEOC Administrative Judge, or request a final decision by
the agency. Appellant initially requested a hearing, but wrote a letter
and withdrew his request for a hearing in early October, 1996, because
he did not have representation. Appellant then changed his mind and in
two different letters, one to the agency dated October 14, 1996, and one
to our Administrative Judge, dated October 11, 1996, asked if he could
again have a hearing. The agency responded by a letter dated October 17,
1996, and, as a courtesy, provided him five days to demonstrate that he
had obtained a representative, or the agency would proceed with writing
a final agency decision. On October 21, 1996, appellant wrote to the
agency, but did not provide any documentation to demonstrate that he
had obtained a representative. Therefore, the agency issued a final
agency decision.
In its final agency decision, the agency concluded that appellant
failed to establish a prima facie case of discrimination because he
presented no evidence to demonstrate that another younger or non-disabled
individual had been reinstated under similar circumstances. The final
agency decision also stated that the agency provided a legitimate,
nondiscriminatory reason for its decision to deny appellant reinstatement,
namely, that appellant failed to demonstrate that since he had been
terminated in 1985, he had corrected the attendance and performance
problems which caused his prior termination. The agency noted that
since 1985, appellant had not worked.
On appeal, appellant contends that the agency was actually motivated by
his age and disabilities, and submitted numerous documents as evidence
of his physical and mental impairments. Appellant suggests that his
prior termination, which he unsuccessfully fought through the Union
grievance process and the Merit Systems Protection Board, was motivated
by his disabilities, and that the agency considered his disabilities when
denying him reinstatement. The agency requests that we affirm its FAD.
After a careful review of the record, and relying on the principles of
discrimination law set forth in McDonnell Douglas v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (applying
McDonnell Douglas to age cases); and Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981) (applying McDonnell Douglas to
disability cases), the Commission finds that appellant failed to present
a prima facie case of age discrimination, as the record demonstrates
that other individuals who were granted reinstatement were older than
appellant. See investigative file, exhibits 9a and 9b. Appellant also
failed to establish a prima facie case of disability discrimination,
as though he presented ample evidence that he was an individual with a
disability as defined by the Rehabilitation Act, he failed to demonstrate
he was qualified for the position due to his past poor performance.
In reaching this conclusion, we note that the record supported the
Personnel Specialist's statement that she had denied reinstatement to
many other individuals for poor performance or bad conduct. Finally,
while appellant argues that the agency unlawfully took his disability into
account when terminating him in 1984, we note that his 1984 termination
is not an issue before the Commission, and that such evidence, even when
examining the agency's denial of reinstatement in 1995, is insufficient
to establish that his disability was a factor in the denial of his
reinstatement where the agency has established that it has consistently
denied reinstatement to individuals who have past performance problems,
and who have not demonstrated that those problems have since been
eliminated. We therefore AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations