01992172
02-20-2002
John T. Delmarre, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons), Agency.
John T. Delmarre v. United States Postal Service
01992172
February 20, 2002
.
John T. Delmarre,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Bureau of Prisons),
Agency.
Appeal No. 01992172
Agency No. P-96-8829
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, we affirm the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Community Corrections Contract Oversight Specialist at an agency
facility in Boston, Massachusetts. When complainant received a letter
dated October 11, 1995 stating that his use of sick leave was excessive
and unacceptable, complainant sought EEO counseling and subsequently
filed a formal complaint on December 26, 1995, alleging that the
agency discriminated against him on the basis age (52) and disability
(heart condition and anxiety). 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.
Turning first to complainant's claim of disability discrimination, upon
review of the record and assuming arguendo for purposes of this decision
only that complainant is a qualified individual with a disability
within the meaning of the Rehabilitation Act, the Commission finds
that the medical evidence in the record failed to establish a nexus
between complainant's impairments and his excessive use of sick leave
in conjunction with weekends, holidays and site visits. The medical
evidence in the record states that complainant has no limitations on
any of his duties. There is no evidence establishing that complainant
needed to use or in fact used any of the sick leave at issue for reasons
relating to his heart condition or his anxiety. Accordingly, we decline
to find a violation of the Rehabilitation Act.
Turning to complainant's claim of age discrimination and applying the
standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978);
and 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),
the Commission notes that complainant fails to identify any employees
to whom he was similarly situated and who were treated more favorably
under similar usage of sick leave. However, even assuming arguendo that
complainant established a prima facie case of age discrimination, the
agency's legitimate, nondiscriminatory reason for counseling complainant
in the form of a letter about his sick leave was that his sick leave usage
was excessive and unacceptable. Complainant has offered no evidence to
suggest that �but for� his age, he would not have received the letter
at issue. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the agency's final decision.
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
February 20, 2002
__________________
Date
1 The 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.