01974557
05-20-1999
Russell F. Terhaar, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y Metro Region), Agency.
Russell F. Terhaar, )
Appellant, )
) Appeal No. 01974557
v. ) Agency No. 1B-145-1010-95
) Hearing No. 160-95-8525X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y Metro Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of physical and mental disabilities
(fissures and nervous condition), in violation of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges he was
discriminated against when he was harassed by the agency between June 4,
1994, and February, 1995, and his employment was terminated on February 9,
1995. 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 appellant, a GS-4 Mail Handler at the agency's
Rochester, New York, Processing & Distribution Center, entered into a
Last Chance Agreement (LCA) with the agency on April 6, 1994, which
placed appellant on probation, stayed his termination for two (2)
years, and allowed the agency to terminate appellant within seven (7)
days if he failed to maintain satisfactory conduct and work attendance
during the probation. Appellant was notified that his employment would
be terminated effective February 9, 1995, for violating the terms of the
LCA, generally involving frequent absences from his work station, related
and unrelated to his use of the restroom.<1> Believing he was a victim
of discrimination, appellant sought EEO counseling and, subsequently,
filed a formal complaint on February 21, 1995, alleging that the agency
had discriminated against him as referenced above. At the conclusion of
the investigation, appellant received a copy of the investigative report
and requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD), finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of disability discrimination as there is insufficient medical evidence
of a mental impairment, and his documented physical impairments were
not proven to be substantial enough to affect any major life activities,
including the ability to care for himself or perform his job duties.<2>
In so finding, the AJ noted that the lack of medical evidence regarding
the extent of appellant's physical impairment precluded a finding that
he has a disability which substantially limits his ability to perform
his job. The agency's FAD adopted the AJ's RD. Appellant makes no new
contentions on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's finding
that appellant failed to establish a prima facie case of disability
discrimination as he presented insufficient evidence to demonstrate
a mental impairment or that the extent of his physical impairments
substantially limited any major life activities. We thus discern no basis
to disturb the AJ's findings of no discrimination which were based on
a detailed assessment of the record. 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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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:
May 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Appellant alleges that he suffers from physical and mental impairments
which require him to use the restroom frequently.
2 The AJ further found that appellant presented no evidence that there
was a record of, or that the agency regarded him as having, an impairment
which substantially limited one or more major life activities.