01974861
06-01-2000
Joshua M. Turner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Joshua M. Turner v. United States Postal Service
01974861
June 1, 2000
Joshua M. Turner, )
Complainant, )
) Appeal No. 01974861
v. ) Agency No. 1A-1161035-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the basis of physical disability (diabetic), in violation of the
Rehabilitation Act of 1973,<1> as amended, 29 U.S.C. �791, et seq.<2>
Complainant alleges he was discriminated against when: (1) on February
14, 1996, he was issued a Letter of Warning for extending a coffee
break by 35 minutes (Case #1A 116 1035-96); and (2) on April 11, 1996,
he was issued a seven day suspension, effective May 18, 1996, for showing
disrespect to a supervisor on April 7, 1996 (Case #1A 11611038-96). The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Mail Handler, at the agency's AMC/JFK, Jamaica, New York
post office. Complainant alleged that he took only a 25 minute coffee
break and not the extended 35 minutes that is alleged. Complainant
also indicated that on April 7, 1996, he was scheduled to report to
work earlier than usual. He stated because of the schedule change,
he failed to eat all of his lunch before coming to work so he planned
to finish eating during the break. Since he had come in late, his
supervisor (S1) told him that he could not go on break with the others.
Complainant admits that he cursed S1 out. He stated that because S1
wanted to penalize him for being late, he could have fainted or slipped
into a coma. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint which was
consolidated on June 15, 1996. At the conclusion of the investigation,
complainant requested a hearing before an Administrative Judge (AJ).
The agency denied complainant's request because complainant failed to
submit his request in a timely manner and did not provide sufficient
reasons for waiving the 30-day time limit for a hearing request. As such,
the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of disability discrimination because the mere mention of a diabetic
condition, without more, was insufficient to establish that one is
a disabled individual as defined by the Rehabilitation Act. The FAD
indicated that complainant extended his break by 35 minutes, in spite of
being paged three times. The FAD indicated that complainant did not bring
up the fact that he had a diabetic condition until a Step 1A grievance
meeting. As a result, the FAD indicated that the retention period of his
Letter of Warning was reduced from two years to nine months. With regard
to the April 7, 1996, incident, the FAD concluded that complainant twice
cursed and berated his supervisor when she questioned his entitlement
to a break. Again the FAD indicated that complainant's need to take a
break was not attributed to a diabetic condition. The FAD concluded that
the agency had provided a non-discriminatory reason for its actions and
complainant had failed to show that there was a connection between his
disability and the alleged discriminatory treatment.
On appeal, complainant contends that the agency failed to consider
that because he is a diabetic he must eat at certain times. He also
indicated that the April 7, 1996, incident was due to the fact that he
is easily agitated when he is hungry and because another supervisor two
days earlier, had let all employees go on break, including those who
came in late. He indicated that these two factors combined, angered
him. The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981), the Commission finds that even assuming,
arguendo, complainant established that he is a qualified individual with a
disability, the agency presented legitimate, nondiscriminatory reasons for
its actions, namely that the disciplinary action was taken as a result
of complainant's behavior, specifically, his returning late from his
coffee break after being paged three times and told to return on time,
and for cursing and berating S1. In so finding, we note that S1 was not
aware that complainant was a diabetic until the grievance procedure, and
that complainant had not requested that the agency provide any reasonable
accommodations related to his diabetes. Further, the Commission 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. See Murphy v. United Parcel Service, Inc., 527 U.S. 516
(1999); Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertsons,
Inc. v. Kirkingburg, 527 U.S. 555 (1999). Therefore, after a careful
review of the record and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 1, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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. Since that time, the ADA
regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website: www.eeoc.gov.
2 On 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.