01985754
03-16-2000
James L. Hill, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James L. Hill v. United States Postal Service
01985754
March 16, 2000
James L. Hill, )
Complainant, )
) Appeal No. 01985754
v. ) Agency No. 1D-234-1021-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On July 17, 1998, James L. Hill (hereinafter referred to as complainant)
initiated an appeal to the Equal Employment Opportunity Commission
(Commission) from a final decision of the agency concerning his complaint
of discrimination in violation of �501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq.<1> The final agency decision
was received by complainant on June 20, 1998. Accordingly, the appeal
is timely filed, and is accepted in accordance with 64 Fed.Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that he was discriminated against on the basis of his
disability ("retired disability status"), and in reprisal for prior EEO
activity when the agency delayed processing his injury compensation claim
by acknowledging receipt of the claim on December 20, 1995, instead of
November 27, 1995.
Complainant filed a formal EEO complaint in February 1996, raising the
above-referenced allegation of discrimination. The agency's initial
dismissal of the complaint was reversed on appeal. Hill v. USPS,
EEOC Appeal No. 01965340 (August 27, 1997). Thereafter, the agency
conducted an investigation of the matter at issue, and notified him
of his right to either an administrative hearing or a final agency
decision in the matter. Complainant failed to timely respond to the
notice, and the agency issued a final decision dated June 15, 1998,
finding that complainant had not been subjected to discrimination.
It is from this decision that complainant now appeals.
The complainant stated that he submitted a CA-2 form for medical
disability, which was received by the agency on November 27, 1995.
The EEO Investigator indicated that a postal return receipt showed that
the form was received by a former Personnel Clerk on that date. It is
noted that the CA-2 form in the record was signed by the complainant and
his representative on November 30, 1993. Further, the record shows that
the complainant's application for disability retirement was accepted by
the Office of Personnel Management on February 7, 1994.
The Human Resources Specialist averred that she received the complainant's
CA-2 form on December 20, 1995, and forwarded the document to the Office
of Workers' Compensation Programs (OWCP) on December 22, 1995. Thus,
she stated there was no delay in submitting the claim.
The complaint herein presents the issue of whether the agency subjected
the complainant to disparate treatment on the basis of his disability
and prior EEO activity. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), provides an analytical framework for proving employment
discrimination in cases in which disparate treatment is alleged. First,
complainant must establish a prima facie case by presenting enough
evidence to raise an inference of discrimination. McDonnell Douglas,
supra, at 802. The agency may rebut complainant's prima facie case by
articulating legitimate, nondiscriminatory reasons for its action, and
if the agency does so, complainant must show, by a preponderance of the
evidence, that the agency's reasons are a pretext for discrimination. Id.
The Commission finds that the complainant failed to establish a prima
facie case of reprisal. In order to establish a prima facie case,
the complainant must show that he engaged in protected activity, of
which the agency was aware, and that he was subsequently subjected to an
adverse action within such period of time that retaliatory motivation can
be inferred. Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). It is
undisputed that the complainant engaged in protected activity, and that
the Human Resources Specialist was aware thereof. Nevertheless, the
record does not show that the complainant was subjected to an adverse
employment action. As stated, the EEO Investigator noted that the CA-2
form was received by a former Personnel Clerk on November 27, 1995.
Nevertheless, it is unclear from the record what information was received
on that date, as the document in the record is dated November 30, 1993,
and the complainant had retired effective February 7, 1994.
With regard to the issue of disability discrimination, the complainant
must first show that he is a qualified individual with a disability.
See Prewitt v. USPS, 662 F.2d 292 (5th Cir. 1981). A disabled individual
is one who: 1. has an impairment which substantially limits one or more
major life activities; 2. has a record of such an impairment; or 3. is
regarded as having such an impairment. 29 C.F.R. �1630.2(g).<2> Major
life activities include caring for one's self, performing manual tasks,
walking, seeing, breathing, learning, and working. 29 C.F.R. �1630.2(i).
In the case at hand, the record fails to show that the complainant was a
qualified individual with a disability. While the complainant applied
for disability retirement, there is no medical evidence regarding his
condition, or information showing that the condition affected his ability
to perform major life activities.<3>
Nevertheless, even assuming that the complainant had established that
he was a qualified individual with a disability, the record does not
support a finding of discrimination in this case.
Specifically, the complainant failed to establish a prima facie case,
as stated above, because he did not show that he was subjected to an
adverse employment action. Finally, even assuming that complainant
did establish a prima facie case, complainant has failed to prove, by
a preponderance of the evidence, that the agency delayed processing his
claim for discriminatory reasons. Therefore, the Commission finds that
complainant was not subjected to disability or reprisal discrimination
with regard to the processing of his CA-2 form.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on disability and prior EEO activity.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 16, 2000
_________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
1On 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.
2The 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.
3In reaching the above determination, we have examined the complainant's
disability claim in light of the Supreme Court's recent decisions in
Sutton v. United Airlines, Inc., 527 U.S. , 119 S.Ct. 1752 (1999);
Murphy v. United Parcel Service, Inc., 527 U.S. , 119 S.Ct. 2133
(1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. , 119 S.Ct. 2162
(1999); Cleveland v. Policy Management Systems Corp., 526 U.S. , 119
S.Ct 1597 (1999); and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196
(1998).