William F. Huggins, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 22, 2004
01A43730_r (E.E.O.C. Nov. 22, 2004)

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