01976541
06-08-2000
John A. Toth, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John A. Toth v. United States Postal Service
01976541
June 8, 2000
John A. Toth, )
Complainant, )
) Appeal No. 01976541
v. ) Agency No. 1C-443-0028-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 3, 1997, the Equal Employment Opportunity Commission
(Commission) received an appeal from John A. Toth (hereinafter referred
to as complainant) from a final decision of the agency concerning his
complaint of discrimination in violation of �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq.<1> The final agency decision
was received by complainant on August 12, 1997. Accordingly, the appeal
is timely, and is accepted by this Commission in accordance with 64
Fed.Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that he was discriminated against on the basis of
his disability ("neck, low back, and both hands"), and in reprisal for
prior EEO activity when he was informed that he was being bypassed for
a Maintenance Mechanic position in January 1997, and when the position
was reduced to a level 5 in February 1997.<2>
Complainant filed a formal EEO complaint in February 1997, raising the
above-referenced allegation of discrimination. The agency accepted
complainant's complaint for processing, and conducted an investigation.
At complainant's request, the agency issued a final decision dated
August 5, 1997, finding no discrimination. It is from this decision
that complainant now appeals.
A review of the record reveals that the agency posted three Notices of
Intent to Fill Vacancies for Maintenance Mechanic, PS-5, positions in
January 1997. Subsequently, one position was filled by an individual
in the maintenance craft. The agency then chose the top two employees
on the Promotion Eligibility Register to fill the remaining positions.
Complainant, a Distribution Clerk, was the third individual on the
Register.
Complainant asserted that the Manager of Maintenance bypassed him for the
position because of his disability. Complainant indicated that he has
fused vertebrae and arthritis in his neck and back, and residual problems
from Carpal Tunnel Syndrome, as evidenced by his Department of Veterans
Affairs disability rating. Complainant indicated that the Manager saw him
wearing a neck brace in December 1996, after he had surgery, and did not
believe he was capable of doing the job at issue.<3> Complainant stated
that he later telephoned the Manager to advise her that his condition
was only temporary and that his doctor had released him to full duty in
January 1997. Further, complainant noted that the Manager had approached
him in October 1996, indicating that he was the only individual who had
qualified for a level 7 position on Tour 1. Complainant stated that the
Manager indicated that an individual in Personnel had advised her that
complainant did not want to work on Tour 1, an issue which had been part
of a 1995 EEO settlement. Complainant stated that the position was then
changed to level 5 on Tour 2 so that more employees would qualify.
The Manager averred that she was not aware of complainant's prior EEO
activity, and did not consider complainant to be disabled. She further
stated that complainant was not bypassed for a level 7 position.
The Manager stated that when a level 7 position was vacated, the position
was changed to a level 5 in conjunction with the Maintenance Workforce
Realignment. The Manager acknowledged observing complainant wearing
a neck brace, stating that she knew complainant was on light duty.
The Manager noted that when the 3 positions were initially announced,
she anticipated considering complainant, but decided to bypass him until
he was released to full duty following his surgery. Shortly thereafter,
complainant advised her that he had been released by his doctor and
the Labor Representative indicated that complainant had provided a note
from his doctor stating that he could perform the Maintenance Mechanic
duties. Nevertheless, the Manager indicated that only two positions
were ultimately filled using the Promotion Eligibility Register, and
that the candidates chosen had the top scores.
Complainant's complaint presents the issue of whether the agency subjected
him to disparate treatment on the bases of his disability and prior
EEO activity. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
provides an analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged. These same standards apply
to complaints of reprisal. See Burrus v. United Telephone of Kansas,
Inc., 683 F.2d 339 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
First, complainant must establish a prima facie case by presenting enough
evidence to raise an inference of discrimination. McDonnell Douglas,
supra, at 802. The agency may rebut complainant's prima facie case by
articulating legitimate, nondiscriminatory reasons for its action, and
if the agency does so, complainant must show, by a preponderance of the
evidence, that the agency's reasons are a pretext for discrimination. Id.
The Commission initially notes that while the agency stated, in part,
that complainant failed to establish a prima facie case because he did not
show that he was treated differently than similarly situated employees,
complainant must only present evidence which, if unrebutted, would support
an inference that the agency's actions resulted from discrimination.
See O'Connor v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, the Commission finds that complainant failed to establish a
prima facie case of reprisal. It is undisputed that complainant engaged
in prior EEO activity. Complainant's complaint, however, was settled
in March 1995, nearly two years prior to the actions at issue, and,
as such, was not sufficiently close in time that a retaliatory motive
can be inferred. Further, the Manager stated that she was not aware of
complainant's prior EEO activity, which involved different management
officials.<4>
With regard to complainant's allegation of disability discrimination,
we will assume, arguendo, that he is a qualified individual with
a disability. See Prewitt v. USPS, 662 F.2d 292 (5th Cir. 1981).
Nevertheless, the record does not support a finding of discrimination in
this case. The agency stated that when the level 7 position was vacated,
it was changed to a level 5 pursuant to the Maintenance Workforce
Realignment. Further, after one of the positions was filled by an
employee in the maintenance craft, the Manager selected the top two
candidates from the Promotion Eligible Register. Complainant submitted
a letter from a union official, stating that the Manager advised him, in
late 1996, that complainant would not receive a position in maintenance
because he was on light duty and wearing a neck brace. Nevertheless,
the Manager stated that she did not consider complainant to be disabled,
and indicated that she was merely waiting until he was released by his
doctor from a temporary condition. Therefore, the Commission finds
that complainant failed to prove, by a preponderance of the evidence,
that he was subjected to disability discrimination with regard to the
matters at issue herein.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on disability or prior EEO activity.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
06-08-00
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 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.
2Complainant initially asserted that the matters at issue were also the
result of color (white) discrimination; however, complainant withdrew
that basis during the investigation.
3According to the record, complainant was on light duty from approximately
November 27, 1996, through January 14, 1997.
4The Commission notes that even assuming the Manager was aware that
complainant did not wish to work on Tour 1, she would not necessarily
have known of his prior complaint.