01A23796_r
08-07-2003
Herbert Harris, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Herbert Harris, Jr. v. United States Postal Service
01A23796
August 7, 2003
.
Herbert Harris, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23796
Agency No. 1G-701-0085-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Laborer Custodian at the agency's New Orleans facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 10, 2001, alleging that he was discriminated against
on the bases of disability, age (D.O.B. 2/23/41), and in reprisal for
prior EEO activity when on April 17, 2001, he was not taken to a medical
facility for treatment after reporting an on-the-job injury.
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. Complainant
requested that the agency issue a final decision.<1>
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of age, disability or reprisal discrimination.
Complainant makes no new arguments on appeal and the agency requests
that we affirm its final decision.
Age Discrimination
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); See also 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). Complainant has the initial burden of establishing a prima
facie case of discrimination. A prima facie case of discrimination
based on age is established where complainant has produced sufficient
evidence to show that: (1) he is a member of a protected class; (2) he was
denied conditions or benefits of employment; and (3) similarly situated
employees outside his protected class were treated more favorably in
like circumstances, or some other circumstance from which an inference
of discrimination may be drawn. See McDonnell Douglas Corp., supra.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
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 age
discrimination because complainant failed to present evidence that the
agency's alleged conduct in not taking complainant to a medical facility
after reporting an on-the-job injury, was related to complainant's age.
Further, the agency concluded that the employees named by complainant,
were in complainant's age group, indicating that age was not a factor
in the action at issue herein.
Reprisal Discrimination
In order to establish a prima facie of retaliation for prior EEO activity,
complainant must show that he engaged in a protected activity; the agency
was aware of the protected activity; subsequently, he was subjected to
adverse treatment by the agency; and a nexus exists between the protected
activity and the adverse treatment. Silva v. National Credit Union
Admin., EEOC Petition No. 03A10087 (March 7, 2002). The Commission
has defined this "nexus" component of the prima facie case as being
satisfied upon a showing that the adverse treatment followed the protected
activity within such a period of time that retaliatory motivation may be
inferred. Packard v. Department of Health & Human Services, EEOC Appeal
Nos. 01985494, 01985495 (March 22, 2001). see also Smithson v. Social
Security Administration, EEOC Appeal No. 01A03598 (August 23, 2001).
Applying this standard to the instant matter, we agree with the agency's
determination that complainant failed to establish a prima facie case
of discrimination based on retaliation. Specifically, we find that
complainant failed to provide persuasive evidence that complainant's
supervisor was aware of his prior EEO activity prior to the action
at issue herein. Moreover, we find that the record evidence does not
requisite nexus, as discussed above, between complainant's prior activity
and the agency's conduct with respect to providing medical treatment
following an on the job injury.
Disability Discrimination
The agency found that complainant was not a person with a disability,
having failed to show that he had an impairment that substantially limited
a major life activity. Nevertheless, for purposes of further analysis,
we assume, arguendo, and without finding, that complainant established
that he is a qualified individual with a disability and is entitled to
coverage under the Rehabilitation Act.<2>
The agency indicated that complainant's supervisor authorized medical
treatment for complainant and instructed him to report to the Medical Unit
regarding his health. The agency stated further that once complainant
advised his supervisor that the Medical Unit was closed, complainant's
supervisor offered to drive complainant to Tulane Medical Hospital
for treatment. However, complainant indicated that he was going to the
Veteran's Hospital after work. The record indicates, that complainant's
co-worker took complainant to the Veteran's Hospital after work on April
17, 2001.
We find that the agency articulated a legitimate, nondiscriminatory reason
for its action. The burden now returns to complainant to demonstrate
that the agency's reason was not its true reason and that it acted based
on discriminatory animus. Complainant has failed to demonstrate that
the agency's articulated reason for its actions is a pretext to mask
unlawful discrimination.
Therefore, after a careful review of the record, we AFFIRM the agency's
final decision for the reasons set forth herein.
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
August 7, 2003
__________________
Date
1The record reflects that initially, on March
11, 2002, complainant requested a hearing before an EEOC Administrative
Judge. In its final decision, the agency indicated that on April 3, 2002,
complainant requested a final decision without a hearing. On appeal,
complainant does not dispute the agency's issuance of a decision without
a hearing.
2A �qualified individual with a disability� is an �individual with
a disability� who satisfies the requisite skill, experience, and
education and other job related requirements of the employment positions
such individual holds or desires and who, with or without reasonable
accommodation, can perform the essential functions of the position.
29 C.F.R. � 1630.2(m).