01A40411
07-19-2004
James S. Sonberg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James S. Sonberg v. United States Postal Service
01A40411
07-19-04
.
James S. Sonberg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40411
Agency No. 4-H-335-0084-02
DECISION
INTRODUCTION
On March 10, 2002, complainant filed a timely formal complaint of
discrimination alleging that he was subjected to unlawful discrimination
on the basis of disability (Post Traumatic Stress Disorder (PTSD)) in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Complainant then withdrew his request for a hearing and requested a final
agency decision (FAD). The FAD, issued on March 11, 2003, determined that
complainant failed to prove that he had been discriminated against based
on his disability (PTSD). Complainant filed the instant appeal on October
24, 2003. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues on appeal are whether the complainant was subjected to
discrimination because of his disability (PTSD) when:
On December 15, 2001, the agency suspended complainant's pay (hereinafter
Claim 1); and
On January 14, 18 and 30, 2002, complainant's wife was called at home
by complainant's Acting Manager (hereinafter Claim 2).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the agency's St. Petersburg, Florida facility.
Beginning in May 2001, complainant submitted monthly letters from his
physician indicating that complainant was being treated for a �Major
Depressive Disorder� and an �Acute Stress Disorder� that rendered him
�totally incapacitated.� The record indicates that the last of such
letters was dated December 17, 2001 and indicated that complainant would
be �off of work from November 16, 2001 until January 16, 2002.�
Complainant sought EEO counseling on January 15, 2002 and subsequently
filed a formal complaint on March 10, 2002. Complainant's formal
complaint alleged that on December 15, 2001, the Post Office Manager
suspended his pay because she had not received complainant's Leave Request
Form 3971. The formal complaint also alleged that the agency harassed his
wife when she attempted to act on his behalf. Complainant alleged that
on January 14, 18 and 30, 2002, his wife received harassing phone calls
at home from complainant's Acting Manager. Complainant asserted that
during these calls, the Acting Manager asked complainant's wife to send
money to �pay back advances originally received by [the complainant] after
[his] pay was suspended.� Complainant asserted that these calls upset
his wife and only ceased when complainant's wife contacted complainant's
union representative.
At the conclusion of the EEO 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. On appeal,
complainant alleges that he requested a hearing before an AJ, and
later withdrew his request, opting for the agency to issue a FAD.
Yet, the agency contends that it issued a FAD pursuant to 29 C.F.R. �
1614.110 because of complainant's failure to timely request a hearing
or FAD. In its FAD, the agency concluded that the harassment alleged by
complainant was not so severe or pervasive as to trigger a Rehabilitation
Act violation. In addition, the FAD determined that the agency had
articulated a legitimate, nondiscriminatory reason for its actions and
complainant had not presented any evidence to show that the reasons set
forth by the agency were pretextual and offered to mask discriminatory
motives.
Complainant timely initiated an appeal of the FAD concerning his complaint
of unlawful employment discrimination. On appeal, complainant contends
that the actions of the agency were �simply harassment towards [the
complainant]� because the agency was �well aware via medical documentation
that [the complainant] was mentally incapacitated.� The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
We find that the complainant's Claim 1 raises an allegation of disparate
treatment based on disability. Generally, where a complainant alleges
discrimination based on disability, he must initially show that he is
a qualified individual with a disability entitled to the protection of
the Rehabilitation Act. For purposes of further analysis, we assume that
complainant is a qualified individual with a disability. We now consider
his claim of disparate treatment based on disability.
In analyzing a discrimination claim under the Rehabilitation Act, where
the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. For Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2nd Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an individual with a disability; (2)
he is �qualified for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
After reviewing the record, the Commission finds that complainant has
failed to demonstrate that the reasons articulated by the agency were
a pretext for discrimination. The agency explained that complainant's
pay was suspended because complainant failed to make a reasonable effort
to keep the Acting Manager informed of his absence via Leave Request
Form 3971. The agency stated that any pay suspension was a result of
complainant's balance of leave being exhausted. The record indicates
that complainant has not offered evidence to demonstrate that this
explanation is merely a pretext for unlawful discrimination.
Turning to Claim 2, complainant is alleging harassment based on his
disability (PTSD). Harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation
of the Rehabilitation Act must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
In order to establish a harassment claim based on disability, complainant
must prove: (1) he is a qualified individual with a disability;
(2) he was subjected to unwelcome harassment; (3) the harassment was
based on his disability; (4) the harassment was sufficiently severe or
pervasive to alter a term, condition, or privilege of employment; and
(5) some factual basis exists to impute liability for the harassment to
the employer. See Fox v. General Motors, 247 F.3d 169 (4th Cir. 2001).
We find that complainant did not establish a prima facie case of
harassment discrimination on the basis of disability. Complainant did
not show that the Acting Manager's telephone calls were sufficiently
pervasive or severe to constitute harassment. See Harris, 510 U.S. at 17.
Moreover, the evidence of record shows that the calls were made as an
attempt to recoup back pay advances made after complainant's pay was
suspended and not because he was disabled.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
____07-19-04______________
Date