01990963
02-13-2001
_____________, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
____________ v. United States Postal Service
01990963; 01A11750
February 13, 2001
.
_____________,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 01990963; 01A11750
Agency No. 4I530007797; 4I530009897
DECISION
Complainant timely initiated these appeals from two final agency decisions
concerning his complaints 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. The Commission exercises its
authority to consolidate these appeals. They are accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of his disability (degenerative disc disease,
chronic left knee pain) when:
(1) on March 14, 1997, he was told by his supervisor to shovel snow or
punch out and go home because he was on suspension; and
on April 26, 1997, he received a Notice of Removal.
The record reveals that during the relevant time, complainant was employed
as a Laborer Custodian at the agency's Brookfield, Wisconsin facility.
On March 14, 1997, complainant refused a direct order from his supervisor
(RMO) to assist another custodian by pushing snow off of the sidewalk.
As a result of complainant's refusal to assist in snow removal and
subsequent AWOL status, the agency issued him a Notice of Removal.
The record reveals that complainant filed the aforementioned complaints
based upon his belief that RMO's order and his removal violated the
Rehabilitation Act. Complainant contends that his medical restrictions
prohibit snow shoveling. The agency found by FADs dated September 29,
1998 and August 14, 1998, respectively, that the order to assist in snow
removal and complainant's subsequent termination, did not violate the
Rehabilitation Act. From these FADs complainant now appeals.
We note that the agency treated Issue 1 (above) as a claim of disparate
treatment. We disagree with that characterization. After consulting the
record, we recognize complainant's averment as a denial of reasonable
accommodation. An agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual
with a disability unless the agency can show that accommodation would
impose an undue hardship. 29 C.F.R. � 1630.2(o): 29 C.F.R. � 1630.2(p);
29 C.F.R. � 1630.9. As a threshold matter, a person claiming protection
under the Rehabilitation Act must show that she is an individual with a
disability as defined therein. Drummond v. Department of the Army, EEOC
Petition No. 03990069 (March 6, 2000). For the purposes of this analysis
we will assume that complainant is an individual with a disability.
The record establishes that the agency and complainant entered into an
interactive discussion regarding complainant's medical limitations.
The record establishes that the parties agreed to an accommodation.
This accommodation provided that the agency would purchase a special
shovel and train complainant in the use of the snow blower. The parties
agreed that complainant would not be required to lift any snow but could
help by pushing and sweeping light snow and/or using the snow blower on
heavy snow. After reaching this agreement, complainant was asked to
help remove snow on March 14, 1997, and he refused. Complainant was
then given a direct order which he also refused. Complainant later
walked off the job, without notifying his supervisor and did not return
for several days.
Complainant declined work within his medical restrictions. In fact,
there is no evidence that complainant was asked to perform work which
would violate his known medical limitations or that he was unable to do
the work in the manner he previously negotiated.
We have also considered whether complainant was discriminated against
when he was issued a notice of termination and the agency refused to
rehire him. Therefore Issue 2 (above) is a claim of disparate treatment.
We find that the agency has articulated a legitimate nondiscriminatory
reason for terminating the complainant; namely, that complainant
failed to perform duties within his medical restrictions and that he
was on AWOL for several days. The burden now shifts to complainant
to establish that the reasons proffered by the agency are a pretext
for discrimination. Texas Department Of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502
(1993). Complainant has failed to profer any evidence from which we
can conclude that the reasons proffered by the agency are a pretext
for discrimination. Accordingly, we AFFIRM the agency's final decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 13, 2001
Date