01972793
03-16-2000
Angela Vernon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Angela Vernon v. United States Postal Service
01972793
March 16, 2000
Angela Vernon, )
Complainant, )
)
v. ) Appeal No. 01972793
) Agency No. 4F-900-1153-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 16, 1997, Angela Vernon (hereinafter referred to as
complainant) filed a timely appeal from the February 11, 1997, final
decision of the United States Postal Service (hereinafter referred
to as the agency) concerning her complaint of unlawful employment
discrimination in violation of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. ��791, 794(c). The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Rg. 27,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the basis of disability (viral meningitis) when she was issued
a seven-day suspension on April 30, 1996.
Complainant filed her formal complaint on July 17, 1996. Following an
investigation, she was advised of her right to request a hearing before an
EEOC Administrative Judge or an immediate final agency decision (FAD),
but she did not respond to the notice. The agency issued its FAD,
finding no discrimination.
Complainant began her employment with the agency in April 1994. At the
time of the events herein, she was a computer mark-up clerk at the Los
Angeles Processing and Distribution Center. In August 1995, complainant
was placed on sick leave restriction, and, in December 1995, she was
issued a letter of warning for excessive absences. At issue herein is a
suspension issued to complainant for excessive absenteeism for the period
March 4, 1996, to April 20, 1996.<2> The Notice cited 68.98 hours of
unscheduled sick leave and 32 hours of being absent without leave (AWOL).
Complainant challenged the suspension, contending that the agency failed
to accommodate her illnesses. She complained that the agency did not
take into consideration that she was hospitalized on April 24 for viral
meningitis, recovering at home thereafter, and that she presented medical
documentation in support; she also contended that her absence for this
period was pursuant to the Family Medical Leave Act (FMLA). Also, she
claimed that the charges of AWOL were due to illness, when she was off
work from March 3 to March 12 due to bronchitis and gastric irritation.
With regard to the AWOL charges, the agency's FAD explained that once
complainant presented medical documentation for her illness in early
March, it removed the charges of AWOL. Further, her absences due to her
hospitalization and recuperation after April 24 were credited to FMLA
absences when medical documentation was submitted.<3> Nevertheless,
the agency stated that complainant's unscheduled absences from April
20 back justified issuance of the suspension based on her continued
unsatisfactory attendance.
Initially we note that complainant appears to misunderstand that
her suspension concerned the period prior to her hospitalization.
Specifically, the Notice identified the unscheduled absences for which the
suspension was issued as those absences as of April 20 and prior thereto.
Complainant was not given discipline based on her absences due to viral
meningitis and the period of FMLA absence.
Next, we address her claim of discrimination based on disability.
As a threshold matter, complainant must show that she is a person with
a disability within the meaning of the Rehabilitation Act.<4> This
is defined as one who has, has a record of having, or is regarded as
having an impairment that substantially limits one or more major life
activities.<5> 29 C.F.R. �1630.2(g). Major life activities include
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i).
Relatively brief and transitory illnesses or injuries, such as experienced
by complainant in early March, that have no permanent or long-term effects
on a major life activity are not substantially limiting and, therefore,
do not rise to the level of a disability. See EEOC Compliance Manual,
Definition of the Term "Disability," �902.4(d). Here, complainant has
not advanced any testimony or evidence to indicate that her illnesses
were more than temporary impairments. For this reason, we find that
complainant is not a person with a disability under the Rehabilitation
Act. Thus, we find that the agency did not discriminate against her on
the basis of disability.
In addition, in her appeal statement, she claims that the agency did
not contact her and fully investigate her claim. Complainant does not
further explain nor describe what information is missing from the record.
The record contains a statement-affidavit from complainant as well as her
statement in support of her appeal. We find that complainant's complaint
was fully investigated and that she had opportunity to state her claims.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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