01976423
03-10-2000
Rhonda G. Kern, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rhonda G. Kern v. United States Postal Service
01976423
March 10, 2000
Rhonda G. Kern, )
Complainant, )
)
v. ) Appeal No. 01976423
) Agency No. 4F-950-1254-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On August 18, 1997, Rhonda G. Kern (hereinafter referred to as
Complainant) filed a timely appeal from the July 28, 1997, final decision
of the United States Postal Service (hereinafter referred to as the
agency) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. ��791, 794(c). The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the Complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the bases of race/color (white), sex, and disability (on-the-job
injury) when she was terminated from her position as a Transitional
Employee in July 1996.
Complainant filed her formal complaint on September 26, 1996. After an
investigation, she was advised of her right to an immediate final agency
decision (FAD) or a hearing before an EEOC Administrative Judge, but she
did not respond. The agency issued its FAD, finding no discrimination.
Complainant was a transitional employee working as a letter carrier. In
early July 1996, she was injured while delivering mail.<2> According
to Complainant, she informed her supervisor (S1) of her injury when she
returned to the station, but he ignored her. S1 stated that Complainant
did not report the accident to him at that time and that management was
not aware of her injury until an inquiry about her limp approximately
ten days later. On July 17, 1996, Complainant was issued a notice
terminating her appointment based on her failure to immediately report
an accident and to maintain regular attendance; she was also given
thirty days administrative leave. S1 stated that Complainant had been
warned about her attendance problems in two discussions and that the
comparative employee she cited had failed to report an accident and was
similarly terminated. The record shows that Complainant had at least
80 hours of unscheduled absences between January and July 1996.
Generally, discrimination claims are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973). Complainant 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The agency offers rebuttal to Complainant's inference
of discrimination by articulating a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met its
burden, the complainant bears the ultimate burden to persuade the fact
finder by a preponderance of the evidence that the reasons offered by
the agency were not the true reasons for its actions but rather were
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993).
The agency explained that Complainant was terminated from her appointment
as a transitional employee because of attendance problems and failure to
report an accident in a timely manner. The record shows that Complainant
had a large number of unscheduled absences and had been previously advised
of this problem. Also, Complainant could not refute S1's contention
that she failed to report her injury in a timely manner. We find that the
agency articulated legitimate, nondiscriminatory reasons for its action.
In response, Complainant failed to demonstrate, nor does the record show,
that the agency's reasons for its action were not its true reasons or
based on prohibited considerations. Complainant's appeal, wherein she
asserts that the injury happened on July 2, is not probative of her
claim of discrimination.
Next, we address Complainant's claim of discrimination based on
disability. As a threshold matter, Complainant must show that she is a
person with a disability within the meaning of the Rehabilitation Act.<3>
This is defined as one who has, has a record of having, or is regarded
as having an impairment that substantially limits one or more major
life activities. 29 C.F.R. �1630.2(g). Major life activities include
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i).
Relatively brief and transitory illnesses or injuries, such as experienced
by Complainant in early July, that have no permanent or long-term effects
on a major life activity are not substantially limiting and, therefore,
do not rise to the level of a disability. See EEOC Compliance Manual,
Definition of the Term "Disability," �902.4(d). Here, Complainant has not
advanced any testimony or evidence to indicate that her injury was more
than a temporary impairment. For this reason, we find that Complainant
is not a person with a disability under the Rehabilitation Act. Thus,
we find that the agency did not discriminate against her on the basis
of disability.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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 10, 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:
_______________ _________________________
Date
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.
2Complainant initially stated she was injured on July 3 but later
changed the date to July 2. The exact date of Complainant's injury is
not relevant to consideration of this matter.
3See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999); Sutton
v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel
Service, Inc., 527 U.S. 516 (1999).