01983264
03-31-2000
Carolyn V. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Carolyn V. Johnson v. United States Postal Service
01983264
March 31, 2000
Carolyn V. Johnson, )
Complainant, )
) Appeal No. 01983264
v. ) Agency No. 1K-211-0085-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a FAD concerning her complaint
of unlawful employment discrimination on the bases of race (Black), color
(Black), sex (female), reprisal (prior EEO activity), mental disability
(unspecified) and physical disability (temporamandibular joint disorder),
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973,<1> as amended,
29 U.S.C. � 791, et seq.<2> Complainant alleges she was discriminated
against on the above-stated bases when, on December 23, 1996, she was
yelled at, threatened and given a discussion regarding excessive talking
to a co-worker. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a PS-06 Maintenance Support Clerk at the agency's Main Post Office
(facility) in Baltimore, Maryland. Complainant alleged that on the date
in question, the facility's Manager of Maintenance Operations Support
(Black male) yelled at her in a belligerent tone, informed her that she
would not be allowed to talk to a co-worker and gave her a disciplinary
discussion, while no other employees were treated in this manner.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on April 1, 1997.
At the conclusion of the investigation, complainant requested that the
agency issue a FAD.
The FAD found that complainant failed to establish a prima facie case
of race, color or sex discrimination because she presented no evidence
that similarly situated individuals not in her protected classes were
treated differently under similar circumstances. The FAD also found
that complainant failed to establish a prima facie case of reprisal
discrimination as although she had prior EEO activity, she failed to
show any nexus existed between her protected activity and the incident
in question. Finally, the FAD found that complainant failed to establish
a prima facie case of physical or mental disability discrimination,
as she did not establish that her impairments substantially limited
any major life activities. The FAD further found that complainant
failed to demonstrate evidence of a nexus between any impairment she may
have had and the alleged acts of discrimination. As a result, the FAD
found that complainant failed to establish discrimination on any of the
alleged bases. Neither complainant nor the agency have made contentions
on appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant failed to
establish a prima facie case of race, color or sex discrimination because
she failed to demonstrate that similarly situated employees not in her
protected classes were treated differently under similar circumstances,
or that other evidence existed, which if otherwise unexplained, would
permit an inference of discrimination. We further agree with the FAD
that complainant failed to establish the requisite nexus between the
alleged act of discrimination and her prior EEO activity and thus she
failed to establish a prima facie case of reprisal. Hochstadt, supra.
Finally, the Commission finds that assuming, arguendo, that complainant's
impairments were substantially limiting and that she was a qualified
individual with a disability, she failed to establish a prima facie case
of disability discrimination as there were no similarly situated employees
not in her protected classes who were treated differently under similar
circumstances. See 29 C.F.R � 1630.2(g)(1)-(3); EEOC Enforcement Guidance
on the Americans with Disabilities Act and Psychiatric Disabilities,
No. 915.002 (March 25, 1997); Visage v. Dept. of the Air Force, EEOC
Request No. 05940993 (July 10, 1995). Therefore, after a careful review
of the record, including arguments and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 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:
March 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1 The Rehabilitation Act was amended in 1992 to apply the standards
in the Americans with Disabilities Act (ADA) to complaints of
discrimination by federal employees or applicants for employment.
Since that time, the ADA regulations set out at 29 C.F.R. Part 1630
apply to complaints of disability discrimination. These regulations
can be found on the EEOC's website at www.eeoc.gov.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.