01A31431
04-28-2004
Charles F. Varecha, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Charles F. Varecha v. United States Postal Service
01A31431
April 28, 2004
.
Charles F. Varecha,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A31431
Agency No. 1J-609-1085-95
Hearing No. 230-A0-5311X
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Maintenance Mechanic, PS-07,
at the Chicago Bulk Mail Center, in Forest Park, Illinois, filed a
formal EEO complaint on December 26, 1996, alleging that the agency had
discriminated against him on the basis of his disability when:
(1) his light duty assignment was terminated on April 28, 1995;
his bid for a change of tour was not honored; and
postal management postponed the processing of his claim for compensation
on account of traumatic injury or occupational disease.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. The agency
subsequently issued a final decision (FAD), asserting that it did not
receive a timely response from complainant. Complainant then appealed
the FAD to the Commission, contending that he had made a timely hearing
request. In EEOC Appeal No. 01984187, Varecha v. United States Postal
Service (March 17, 2000), we vacated the agency's final decision, and
remanded the complaint for a hearing. Subsequently, on September 25,
2002, complainant withdrew his request for a hearing, and the case
was returned to the agency for issuance of a FAD. The FAD found that
complainant failed to establish that any of the challenged actions were
motivated by discriminatory animus. On appeal, complainant asserts
that he has new evidence that he would like to be considered by the
Commission . The agency requests that we affirm the FAD.
As an initial matter we note that complainant has not actually submitted
any new evidence in support of his appeal. Complainant simply explains
on appeal that he has such evidence available now. He also fails
to explain whether or why this evidence was unavailable before now.
We cannot consider new evidence at this stage in the process. As this is
an appeal from a FAD issued without a hearing, pursuant to 29 C.F.R. �
1614.110(b), the agency's decision is subject to de novo review by the
Commission. 29 C.F.R. � 1614.405(a).
Disparate Treatment
We will first apply a disparate treatment analysis to all three issues.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo complainant is an individual with a disability pursuant
to the Rehabilitation Act, we find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions. We further find
that complainant has not established by a preponderance of the evidence
that the agency's reasons are pretext for disability-based discrimination.
Reasonable Accommodation
To the extent that complainant contends that the termination of his
light duty assignment constituted an unlawful denial of a reasonable
accommodation under the Rehabilitation Act, we note that 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 cause an undue
hardship. 29 C.F.R. �� 1630.2(o) and (p). Here, the record contains
evidence that prior to April 1995, the agency had provided complainant
with light duty assignments relating to his carpal tunnel syndrome.
When complainant returned to duty after surgery, on or about April 28,
1995, he was given a light duty assignment and reasonable accommodations
in the Preventative Maintenance Unit, in accordance with his medical
restrictions. The record indicates that complainant was not pleased
with this assignment because he preferred to work in the Maintenance
Control Office. Despite complainant's displeasure with that assignment,
he has not established that the assignment to the Preventative Maintenance
Unit was an ineffective accommodation for him. A medical statement dated
May 22, 1995, from complainant's physician indicates that complainant
could resume normal duties without limitations beginning May 28, 1995.
See Report of Investigation at Exhibit 11. Considering all of the above,
we conclude that complainant has not established that the agency failed
to provide him with reasonable accommodation.
After a careful review of the record, including all statements submitted
on appeal, we find no violation of the Rehabilitation Act, and therefore,
we AFFIRM the FAD.
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
April 28, 2004
__________________
Date