John F. Saroli, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJun 18, 2001
01982686 (E.E.O.C. Jun. 18, 2001)

01982686

06-18-2001

John F. Saroli, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


John F. Saroli v. United States Postal Service

01982686

June 18, 2001

.

John F. Saroli,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 01982686

Agency No. 4J-481-0010-97

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title

VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleged that he was discriminated against on the bases

of disability (job related injuries to left shoulder, back, and right

knee, Depression with Paranoid Schizophrenic Tendencies which resulted

in substance abuse-alcohol) and retaliation (prior EEO activity) when

he was issued a Notice of Charges - Removal dated September 4, 1996,

effective October 4, 1996, for unacceptable conduct and safety violations.

The record reveals that during the relevant time, complainant was employed

as a Full-Time Distribution Window Clerk, PS-05, at the agency's Wyandotte

Post Office, Wyandotte, Michigan facility. Believing he was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on December 2, 1996. 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. When complainant failed to respond within the

time period specified in 29 C.F.R. � 1614.108(f), the agency issued a

final decision.

In its FAD, the agency concluded that complainant failed to support

a prima facie case of both disability discrimination and reprisal.

With respect to complainant's disability claim, the agency concluded

that complainant failed to provide any evidence which could support

the finding that complainant had a physical or mental impairment that

substantially limited a major life activity. In addition, the agency

found no evidence that could support the finding that agency officials

regarded complainant as disabled. The agency also found that the

responsible management officials who initiated the removal and who

were directly involved in complainant's removal had no knowledge of

complainant's alleged disabilities. Lastly, the agency found the record

devoid of evidence which would support the finding that complainant

was treated more harshly than similarly situated individuals outside of

complainant's protected class.

With respect to the reprisal claim, the agency concluded that complainant

failed to present a prima facie case of reprisal because he could not show

that the responsible management officials were aware of complainant's

prior EEO activity and because complainant could not establish a

causal connection between the prior EEO activity which took place two

years earlier and the removal. In addition, the agency noted that the

responsible management officials involved in the removal action were

not named in the prior EEO complaint.

Lastly, the agency concluded that complainant did not show, by a

preponderance of the evidence, that the agency's articulated legitimate,

non-discriminatory reasons for its employment action were pretexts

to mask employment discrimination or reprisal. The record revealed

that complainant was issued a Notice of Removal for unacceptable

conduct and safety violations. Specifically, the Notice of Removal

set out the following incidents which resulted in the notice: On

August 5, 1996, complainant notified his supervisor of an injury he

sustained while at work approximately one hour earlier in the shift.

Complainant explained that he strained his back while lifting parcels

and bags. Complainant was reprimanded for not notifying management of

his injury immediately after it occurred. On August 6, 1996, complainant

rammed the All Purpose Container (APC) into the Distribution Case being

worked by another clerk. Complainant backed the APC up and rammed the

Distribution Case one more time. The carrier warned complainant to

stop and was afraid of being injured by complainant. Complainant then

took the APC over to the Carrier Case 9557 and rammed it into that

case as well. On August 12, 1996, complainant was heard yelling and

screaming profanity on the workroom floor and was seen banging containers.

Complainant stated to management that another employee rammed an APC into

his knee. According to the other employee, the APC container that he

was pushing slightly rolled and �tapped� the container that complainant

was working at. According to the employee, as complainant walked away,

complainant grabbed the container in front of the employee and �bashed�

it into an empty container while screaming and yelling profanity.

Complainant also threw his safety equipment on the ground. On August

24, 1996, complainant was instructed to distribute the marriage mail.

The supervisor observed that the carrier case area that complainant had

been working in had been drastically altered, as if �a tornado had come

through.� The employee assigned to the area stated that prior to his

discovery of the mess, complainant approached him and loudly belched

into his ear from a distance of approximately three inches.

On August 27, 1996, complainant was interviewed by a supervisor with

regard to his conduct on the above dates. Complainant stated that

he did not believe any of his actions were unsafe and gave no other

explanation or justification for his behavior. Complainant provided

no evidence of pretext. Complainant provides no statement on appeal.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d

292, 310 (5th Cir. 1981); 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 disability discrimination and reprisal

because complainant failed to prove, by a preponderance of the evidence,

that the responsible management officials knew of his prior EEO activity

or his alleged disabilities.<1> In reaching this conclusion, we note that

while the Postmaster affirmed that he was aware of complainant's prior

EEO activity and had some knowledge of complainant's medical conditions,

there is no evidence in the record which supports the finding that his

supervisors were also aware of such information. The Postmaster affirmed

that he was not involved in the decision to terminate complainant and the

responsible management officials both testify that they had no knowledge

of complainant's alleged disability or prior EEO activity.

The Commission further finds that complainant failed to present evidence

that more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. In reaching this conclusion,

we note that the undisputed record shows that complainant had a history

of discipline for similar failures. We also note that complainant failed

to articulate any reason for disbelieving the agency.

Therefore, after a careful review of the record and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

June 18, 2001

__________________

Date

1Since we find that complainant failed to prove, by a preponderance

of the evidence, that the responsible management officials where aware

of his prior EEO activity and alleged disability, it is unnecessary to

determine whether complainant was in fact a qualified individual with

a disability within the meaning of the Rehabilitation Act.