0120120816
09-19-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120120816
Agency No. 1K-234-0018-11
DECISION
Complainant timely filed an appeal from the Agency's November 22, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant did not establish that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Processing & Distribution Center (P&DC) in Norfolk, Virginia. Complainant previously had been assigned to an Agency facility in Philadelphia, Pennsylvania, but on February 26, 2010, involuntarily transferred to the Norfolk P&DC when he was excessed.
On July 19, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (limited-duty status based on permanent injury to left leg, rotator cuff injury, and chronic back pain and sciatica) when:
1. by letter dated May 24, 2011, he was instructed to report to Automation and was considered full-duty while he still had physical restrictions and subsequently was not provided a limited-duty job offer; and
2. on or about June 22, 2011, his CA-2A was returned to him to re-date.
On August 4, 2011, the Agency issued a letter of Partial Acceptance and Partial Dismissal of his formal EEO complaint, in which it accepted issue 1 for investigation but dismissed issue 2. The Agency dismissed issue 2 citing 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found that Complainant claimed to have permanent restrictions resulting from work-related injuries occurring April 18, 2007. Complainant maintained that he was limited in his ability to lift, push/pull equipment, and could not engage in repetitive motion, and therefore was unable to work in the Automation section. Complainant stated that he worked in a limited-duty capacity for almost a year prior to the decision of the Manager, Distribution Operations, to place him on full-duty in the Automation section. Complainant was sent a letter instructing him to report to a full-duty assignment in Automation effective May 26, 2011. At the time he was sent the letter, Complainant was working under restrictions dated April 7, 2011. However, in a letter dated May 27, 2011, from the Acting Nurse Case Manager for the Richmond District, Complainant was advised that the District was accessing his current case information from the South Jersey Performance Cluster, and was informed of the need to update his medical information, as the information they had on file was dated June 2010. Complainant was provided with an updated job offer which he received and signed on June 27, 2011, which provided him with a limited-duty assignment.
The Agency found that Complainant met the definition of an "individual with a disability," as he had an impairment that substantially limited a major life activity, and he asserted that the resulting restrictions from his injuries were permanent in nature. It further found Complainant was a qualified individual with a disability, as he was able to perform the core duties of the position with reasonable accommodation. Complainant testified that he was accommodated in a modified-duty assignment for approximately a year prior to receipt of the May 24, 2011, letter informing him that he was considered full-duty and was to report to the Automation Section. The Agency found that the management determination that Complainant was no longer considered a light or limited-duty employee was based on improper information received regarding his status, and that once it was clarified that he was entitled to limited-duty consideration, an accommodating job offer was prepared for him on June 9, 2011, within the restrictions noted on his recent Form CA-17. It concluded that the Agency had properly provided Complainant with a reasonable accommodation.
The Agency also analyzed Complainant's complaint under a claim of disparate treatment discrimination. Complainant asserted that he was treated less favorably relative to limited-duty assignments than two other employees, who he claimed had not had their job status re-evaluated, nor had their job duties changed, and that he was senior in seniority status to both of these individuals. The National Reassessment Process (NRP) Coordinator for the Norfolk P&DC testified that employee #1 was not re-evaluated, as employees are only re-evaluated if there is a change in medical restrictions, or if the previously assigned duties are no longer available. Employee #2 was a limited-duty employee who was provided a job offer as part of the NRP. She also testified that Complainant had never been evaluated previously for limited-duty consideration while employed in the Norfolk P&DC, and that this evaluation was an initial one. She stated that Complainant initially did not provide documentation to support his claims of having restrictions, and that he was not processed under the NRP.
The Agency found that, assuming Complainant had established a prima facie case of disability discrimination, it had articulated legitimate, non-discriminatory explanations for the actions of the Norfolk P&DC management. The Manager, Distribution Operations, testified that she made the decision instructing Complainant to return to full-duty work in the Automation section effective May 26, 2011, based on information she received on May 23, 2011, indicating that Complainant had not provided documentation substantiating his claimed entitlement to limited-duty consideration. A subsequent e-mail dated June 3, 2011, advised that Norfolk personnel had finally spoken with officials in Philadelphia and it was determined that Complainant did, in fact, have a limited-duty claim and that he should be able to work based on his Form CA-17. A limited-duty job offer was offer was originally dated for June 9, 2011, but Complainant did not return to have the offer made until June 27, 2011. The Agency concluded that Complainant had not shown its reasons to be pretext for discrimination, and had failed to show that the Agency's failure to provide him with a continued limited-duty assignment was due to anything other than a legitimate management communication error.
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant did not submit any statement or brief in support of his appeal. The Agency did not submit any statement or brief in opposition to Complainant's appeal.
STANDARD OF REVIEW
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
We first find that the Agency properly dismissed claim 2 from Complainant's complaint for failure to state a claim. Complainant has not shown that he suffered a present harm to a term, condition, or privilege of his employment when he was asked to re-date the form in question.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, he must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. � l630.2(m); and (3) the Agency failed to provide a reasonable accommodation absent undue hardship. See Enforcement Guidance.
We note that the Agency found Complainant to be a qualified individual with a disability. We find that Complainant has not shown that the Agency wrongfully denied him a reasonable accommodation for his restrictions. While Complainant was instructed to report for a full-duty assignment in Automation on May 24, 2011, the record shows that a mix-up in paperwork between Complainant's previous facility and the Norfolk P&DC was at the root of the temporary lapse in accommodating his work restrictions. He was provided with a limited-duty job offer, which he accepted, on June 27, 2011, and was accommodated with work within his restrictions.
Disparate treatment
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). Complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that, assuming Complainant established a prima facie case of disability discrimination, the Agency offered legitimate, nondiscriminatory reasons for its actions, as detailed above. After a thorough review of the record, we find that the investigative file supports the Agency's legitimate, nondiscriminatory reasons. We also find that Complainant has not established that the Agency's articulated reasons to be pretext for discrimination on the basis of his disability.
CONCLUSION
Based on a thorough review of the record, and in the absence of any contentions on appeal, we AFFIRM the Agency's final decision finding that Complainant did not establish that he was discriminated against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 19, 2014
Date
2
0120120816
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120816