Kevin Bebee v. U.S. Postal Service
01980011
09-28-01
.



Kevin Bebee,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01980011

Agency No. 1C441112996

Hearing No. 220-97-5111X

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of disability (partially amputated foot) in violation of Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.
For the reasons stated herein, the agency's FAD is affirmed.

ISSUE PRESENTED

The issue on appeal is whether complainant has established that the
agency discriminated against him on the above-referenced basis when it
reduced his employment from transitional to casual.<1>

BACKGROUND

During the period in question, complainant was employed as a Transitional
Clerk, PS-6, at an Ohio facility of the agency.  Believing he was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint alleging that the agency discriminated against him
based on disability (partially amputated foot) when the agency terminated
his transitional employment and offered him casual employment.<2>

Complainant stated that the agency's action was discriminatory
because his termination resulted from his unexcused absences, which
were directly related to his impairment, i.e., his partially amputated
foot.  The agency stated that complainant's transitional employment was
terminated in response to instructions from the area office to reduce
the number of transitional employees (TE).  According to the agency,
the initial criteria for reduction was any TE who worked on the letter
sorting machines because the agency was no longer using the machines. The
agency then determined that such a criteria could terminate a productive
employee so the agency then changed the criteria to reduce any TE who had
four or more unscheduled absences  since a particular date.  The number
of unscheduled absences was later decreased to three or more to meet the
required number of reductions.  An employee who satisfied the reduction
criteria could be retained if his supervisor found him productive.
Further, the agency stated that it was unaware that complainant had
an impairment.

At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).  The AJ issued a decision after a hearing,
finding no discrimination.  Specifically, the AJ found that complainant
failed to establish a prima facie case of discrimination based on
disability.  The AJ concluded that complainant was not a qualified
individual with a disability and that there was no connection between
his impairment and his termination.

The agency issued a FAD concurring with the AJ's finding of no unlawful
employment discrimination based on disability.  This appeal followed.

ANALYSIS AND FINDINGS

When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process.  McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).  The initial burden is on the complainant to establish a prima
facie case of discrimination.  Id. at 802.  The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action.  Id.  If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext for
its discrimination.  Id. at 804.   Although this analysis was developed
in the context of Title VII, it is equally applicable to claims brought
under the Rehabilitation Act.

The Rehabilitation Act prohibits discrimination against qualified
individuals with a disability.  See 29 C.F.R. § 1614.203.  In order to
establish disability discrimination, complainant must first show that:
(1) he is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g)<3>; (2) he is a qualified individual with a disability
pursuant to 29 C.F. R. § 1630.2(m); and (3) he was subjected to an
adverse personnel action under circumstances giving rise to an inference
of disability discrimination.  See Lawson v. CSX Transp., Inc., 245 F.3d
916 (7th Cir. 2001).

The record is not fully developed regarding complainant's impairment.
However, even if the Commission assumes arguendo that complainant is
a person with a disability, he failed to establish a prima facie case
of disability because the circumstances do not yield an inference of
discrimination, i.e., a nexus between complainant's alleged disability
and his demotion.

As a child, complainant was struck by an automobile and his right foot
was crushed.  As a result, a portion of his right foot was amputated.
During the period at issue herein, complainant was suffering with
“arthritis-like pain” in his right foot, which prevented him from
prolonged walking or standing.  Complainant did not notify his supervisors
of his impairment because he felt that they would not understand and
would consider him a whiner.   Complainant's supervisors as well as
the personnel staff, who implemented the reduction of TEs, stated that
they were unaware of complainant's impairment.  Complainant failed to
demonstrate that his supervisors and the personnel staff had knowledge of
his physical impairment or knowledge of his physical impairment rising
to the level of a disability as defined by the Rehabilitation Act.
See Todd v. Department of the Army, EEOC Appeal No. 01972825 (Mar. 3,
1999).  We discern no basis for finding that complainant has established
discrimination based on disability.

CONCLUSION

After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's finding
of no discrimination based on disability.

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


____09-28-01______________
Date





1A “casual employee” is a non-career, supplemental workforce employee
with a limited term appointment.  A “transitional employee” is also a
temporary, supplemental workforce employee, however, it appears that
his pay and benefits are higher.

2Complainant did not accept the casual appointment offered by the agency
because it required prolonged walking and standing.

3The 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.

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