01971226
03-06-2000
Gerald M. Elliott, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gerald M. Elliott v. United States Postal Service
01971226
March 6, 2000
Gerald M. Elliott, )
Complainant, )
)
v. ) Appeal No. 01971226
) Agency No. 4H-370-1046-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 25, 1996, Gerald M. Elliott (hereinafter referred to as
complainant) filed a timely appeal from the October 25, 1996, final
decision of the United States Postal Service (hereinafter referred to as
the agency) concerning his complaint of unlawful employment discrimination
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 of
1967, as amended, 29 U.S.C. �621 et seq., and 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 EEOC Order No. 960, as amended. 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 him on the bases of race (white), sex, disability (mental,
service-related nervous condition), and age (DOB 2-13-46) with regard
to certain terms and conditions of work.
Complainant filed his formal complaint on January 27, 1996, alleging that
agency managers: (a) directed him to provide medical justification in
support of his sick leave on December 14, 1995, and (b) on December 18,
1995, harassed him, e.g., that he was working too slow, was taking a
long break, and was denied union representation. After an investigation,
the agency advised complainant that he could request a hearing before an
EEOC Administrative Judge or an immediate final agency decision (FAD),
but complainant did not respond. The agency issued its FAD, finding
no discrimination.
The record shows that complainant began his employment with the agency
in September 1994 as a PTF carrier. In approximately March-April 1995,
he was awarded a new route but was informed in December 1995 that his
performance was unsatisfactory, that numerous customer complaints had
been filed, and that his safety record was poor. He contended that black
carriers were given sufficient time to learn their routes and assistance
in delivering their routes when necessary, while he was not. In addition,
complainant claimed that agency managers knew of his disability, since
he had included that information on his application and taken sick leave.
Agency managers contended that complainant was given sufficient time
and training over eight months to learn his route, that he failed to
do so or perform in a satisfactory manner, and that these matters were
discussed with him in a professional manner. Also, the agency cited
previous disciplinary actions against complainant for poor performance
and numerous customer complaints regarding his conduct and performance.
In addition, one manager (S1) explained that he was instructed to bring
in medical justification for his absence when he left work on sick leave
without completing his route. The record contains examples of medical
excuses from other employees provided upon request by supervisors.
Also, agency managers denied knowledge of his disability.
Generally, discrimination claims are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003
(1st Cir. 1979). Complainant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The agency offers rebuttal to appellant's inference
of discrimination by articulating a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met its
burden, the complainant bears the ultimate burden to persuade the fact
finder by a preponderance of the evidence that the reasons offered by the
agency were not the true reasons for its actions but rather were a pretext
for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). Under the ADEA, the complainant must show that his age was a
determining factor in the agency's decision, that is, considerations
of age made a difference in the agency's action. Hazen Paper Company
v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role in the process
and a determinative influence on the outcome").
Here, agency managers stated that complainant was afforded sufficient
time and training over eight months to learn his route, that he failed
to do so or perform in a satisfactory manner, and that these matters
were discussed with him in a professional manner. Also, S1 stated that,
because complainant left work without completing his route, he was asked
to support his sick leave. We find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions.
The burden now returns to complainant to demonstrate that the agency's
reasons were a pretext for discrimination or based on prohibited
considerations. Complainant has not presented any evidence in support
of his contentions nor shown that he was singled out on the basis of
his race or sex or that his age was a factor in the agency's actions.
Neither the record herein nor complainant has demonstrated that the
agency's reason for its action was pretextual, that is, based on a
prohibited factor such as race, sex or age or was grounded in racial,
sexual, or age animus. We find therefore that the agency did not
discriminate against complainant on the bases of race, sex, or age.
Nor do we find that the incidents as alleged by complainant rise to the
level of harassment.
Finally, we address appellant's claim of discrimination based on
disability. As a threshold matter, complainant must show that he is a
person with a disability within the meaning of the Rehabilitation Act.<2>
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.<3> 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). There
is nothing in the record showing that complainant has, has a record of,
or was regarded as having an impairment of any kind. We find therefore
that the agency did not discriminate against him based on disability.
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 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 6, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On 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.
2The 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 EEOC's
website: WWW.EEOC.GOV.
3See Albertson's, Inc. v. Kirkingburg, 119 S.Ct. 2162 (1999); Sutton
v. United Airlines, Inc., 119 S.Ct. 2139 (1999); Murphy v. United Parcel
Service, Inc., 119 S.Ct. 2133 (1999).