01A43730_r
11-22-2004
William F. Huggins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William F. Huggins v. United States Postal Service
01A43730
November 22, 2004
.
William F. Huggins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43730
Agency No. 1C-291-0009-03
Hearing No. 140-2003-08373X
DECISION
Complainant filed an appeal with this Commission from an April 12, 2004
agency decision finding no discrimination concerning his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
Complainant alleged that the agency discriminated against him on the
basis of disability when on July 1, 2002, he received a letter from the
agency's Columbia District denying his request for a transfer.
At the conclusion of the investigation of his complaint, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a final decision by the agency.
Complainant requested a hearing. The AJ canceled the hearing and ordered
the agency to issue a decision on the complaint when complainant failed
to respond to the AJ's order to reply to the agency's discovery request.
In its decision finding no discrimination, the agency concluded that
complainant failed to establish a prima facie case of discrimination based
on disparate treatment, because complainant did not meet the requirements
of the disability standard. The agency further concluded that even if
complainant established a prima facie case of discrimination, the agency
had articulated a legitimate, nondiscriminatory reason for its action by
a preponderance of the evidence. The agency noted that on February 15,
2002, complainant requested a transfer from New Jersey to South Carolina.
The agency also noted in its decision that after complainant's transfer
request was submitted, a Human Resources Specialist in South Carolina
requested complainant's official personnel folder and a copy of his
"PS 3972" which showed tardiness, sick leave, emergency leave usage, and
nonscheduled days' usage. The agency further noted in its decision that
in a June 25, 2002 letter, complainant was notified by the agency that
his transfer request was denied because of his attendance. The agency
indicated in its decision that the Plant Manager in South Carolina stated
that complainant was denied a transfer because his record reflected
12 unscheduled absences in 2001. The agency's decision also indicated
that the Human Resources Specialist stated that she was not aware of
complainant's disability and that she did not receive any information
regarding complainant's disability.
On appeal, complainant asserts that the Plant Manager knew that he was
a disabled veteran and submitted a Notification of Personnel Action
(Form 50), with an effective date of April 19, 2003 in support of his
contention.
In his affidavit, complainant stated that the agency informed him that his
transfer request was denied because of his attendance and because he was
unreliable. Complainant also stated that his attendance is a reflection
of his disability and that he is a 100 percent disabled veteran. In his
affidavit, complainant did not provide answers to questions which asked
him what was his disabling condition, how long he had the disabling
condition, whether his disabling condition was permanent or temporary,
whether he was regarded by the agency as having an impairment, whether
the impairment limited one or more of his major life activities, whether
the disability affected his daily work activities, whether he had ever
requested reasonable accommodations, whether the agency official who
denied the transfer was aware of his disabling condition and whether he
had indicated that his attendance problem was due to his disability when
he submitted the transfer request.
The record also contains the affidavit of the agency's Plant Manager
in South Carolina. The Plant Manager stated that she did not know
complainant, was not aware of any disability, and that even if she
was aware of complainant's disability, that knowledge would not have
influenced her decision. She also stated that she reviewed the official
personnel folder and she made the decision to deny the transfer based
on complainant's attendance history. The Plant Manager stated that
complainant's record indicated 12 unscheduled absences in 2001, that his
history of unscheduled absences was unacceptable, and that complainant
had demonstrated by his record that he was not reliable or dependable
to be regular in attendance. She also stated that attendance is a top
priority and that she expected employees to be regular in attendance
and not have unscheduled absences. The Plant Manager further stated
that acceptable attendance was a requirement for all transfer requests.
Also contained in the record is the affidavit of the Human Resources
Specialist in South Carolina. She stated that she was not aware of any
disability concerning complainant and that she did not receive any medical
documentation relating to complainant's disability. The Human Resources
Specialist stated that the office denies many requests for transfers and
the most common reason for a denial was attendance. She stated that to
her knowledge, the office had not denied a transfer due to a disability
of which the office was aware.
The record contains the affidavit of the Maintenance Manager in
South Carolina. He stated that he did not know or remember having
met complainant and that he was one of the officials that reviewed
complainant's official personnel file folder and his request to transfer.
The Maintenance Manager also stated that he recommended that the transfer
request be denied based on complainant's attendance record. He stated
that he was not aware of complainant's disability and that even if he did
know, this knowledge would not have caused him to change his decision.
The Maintenance Manager referenced complainant's unscheduled absences
and noted that regular attendance was a basic requirement for an agency
employee and that complainant's record did not meet the basic requirement.
The record also contains a June 24, 2003 letter to complainant from
the Veterans Service Center Manager which states that complainant has
a service connected disability rating of 100 percent. Also contained
in the record is an agency Notification of Personnel Action (Form 50),
with an effective date of April 19, 2003, which indicates that complainant
had a 10 point veterans disability preference.
As an initial matter, the Commission will address the AJ's dismissal of
complainant's hearing request for failure to comply with the agency's
discovery request. The record contains the AJ's Acknowledgment and Order,
dated November 5, 2004. Therein, the AJ informed the parties that failure
to follow the Order could result in sanctions pursuant to 29 C.F.R. �
1614.109(f)(3). The Order notified the parties of their right to seek
discovery prior to the hearing and informed them that they must cooperate
with each other in honoring discovery requests. The Order also informed
the parties that discovery had to be completed within 90 calendar days of
the Order and that parties seeking discovery had to serve his requests
on the opposing party within 20 calendar days of receipt of the Order.
The Order provided that responses to a request for discovery had to be
served within 30 calendar days from the date of service of the request.
Motions to compel discovery were to be filed within 10 calendar days from
the date a response to discovery was due. On or about November 18, 2004,
complainant received the agency's discovery request. A motion to compel
discovery was received by the AJ on January 2, 2004. In an Order, dated
January 13, 2004, the agency's request to compel discovery was granted.
The AJ, noting that complainant had failed to respond to the motion to
compel discovery, indicated that complainant's response to the discovery
request was inadequate and ordered complainant to comply with discovery.
The record reveals that on February 19, 2004, the agency filed a motion,
requesting that the AJ sanction complainant by dismissing the complaint
or any other sanction that was appropriate for failure to comply with
the AJ's discovery order. In an Order dated March 18, 2004, the AJ
dismissed complainant's request for a hearing pursuant to 29 C.F.R. �
1614.109(f)(3), noting that complainant had failed to respond to the
AJ's order or to submit any reply to the agency's motion concerning his
failure to respond to discovery.
An AJ has the authority to sanction either party for failure, without
good cause shown, to fully comply with an order. See 29 C.F.R. �
1614.109(f)(3). The Commission finds that the record supports the AJ's
finding that complainant failed, without good cause shown, to show why
he failed to comply with the AJ's order compelling discovery. Therefore,
cancellation of the hearing was an appropriate remedy in this case.
The Commission will next address the discrimination claim. A claim of
disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For a complainant to prevail, he or she must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). This established order of analysis in discrimination cases, in
which the first step normally consists of determining the existence of
a prima facie case, need not be followed in all cases. Where the agency
has articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis to consider the ultimate issue
of whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's finding of
no discrimination. Assuming, without deciding, that complainant has
established a prima facie case of disability, the Commission finds that
the agency has articulated a legitimate, nondiscriminatory reason for its
action in denying complainant a transfer request. Complainant was denied
the transfer because of his unsatisfactory attendance record. There is
no evidence in the record that other employees without a disability
were allowed to transfer with an unsatisfactory attendance record.
The only evidence in the record that could possibly have suggested a
disability is the June 24, 2003 letter which states without explanation
that complainant had a service connected disability rating of 100 percent
and the Notification of Personnel Action (Form 50), with the effective
date of April 19, 2003. However, both of these documents are dated after
the denial of the transfer. Moreover, the agency officials involved in
the transfer denial stated that they did not know about complainant's
alleged disability and even if they had known that complainant had
a disability, this knowledge would not have changed their decision.
Accordingly, complainant has not proven, by a preponderance of the
evidence, that the agency's explanation was not its true reason for its
action, but was a pretext for unlawful discrimination.
The agency's finding of no discrimination is AFFIRMED.
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
November 22, 2004
__________________
Date