0120120549
09-19-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120120549
Hearing No. 460-2010-00128X
Agency No. 4G-7700-250-09
DECISION
Complainant timely filed an appeal from the Agency's final order 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 order.
ISSUES PRESENTED
The issues presented are whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ) decision that: (1) Complainant failed to establish the Agency unduly delayed and denied his request for a reasonable accommodation for his asserted disability; and (2) Complainant failed to establish that the Agency's proffered explanation for its actions was pretext to mask discrimination based on his protected classes.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manager of Customer Services, EAS-22, at the Agency's Watson Station in Arlington, Texas. On March 23, 2007, Complainant sent an e-mail to the Postmaster of Arlington, requesting reassignment due to health problems. Report of Investigation (ROI), at 479. In the e-mail, Complainant stated that he was no longer effective in his job as Manager of Customer Services and that he was willing to downgrade to an EAS-17 supervisor position with the understanding that his salary would be saved at the EAS-22 level. Id. In accordance with his request, the Agency, on March 31, 2007, reassigned Complainant and downgraded him to a Supervisor of Customer Services, EAS-17, with the Agency's Hurst North Station with the saved rate of $88,685. On April 14, 2007, Complainant was reassigned again to an EAS-17 position with the saved salary rate of $88,685.00 at the Agency's Sage Carrier Annex in Houston, Texas. Id. at 19.
On September 25, 2008, Complainant received a letter from the Agency's Human Resources (HR) Manager with the Fort Worth District in response to his September 2, 2008, request for reasonable accommodation. Id. at 183. Specifically, Complainant requested to be transferred to a supervisor position in the Fort Worth District within commuting distance from his home. In the response letter, the HR Manager of Fort Worth noted that she was unable to consider Complainant's accommodation request due to a freeze on hiring, promotions, and transfers. Id. Days later, on September 30, 2008, Complainant sent a letter the Agency's HR Manager with the Southwest Area, noting that his request had been denied by the HR Manager of Fort Worth. Id. at 198. On December 5, 2008, Complainant's doctor sent a letter to the HR Manager of the Southwest area requesting accommodation for Complainant. Id. at 199.
Subsequently, on December 29, 2008, Complainant received a letter from the Agency's District Reasonable Accommodation Committee (DRAC), indicating that his request had been received, but that further medical information regarding his condition was necessary to initiate his reasonable accommodation. Id. at 200. Complainant reportedly resent his doctor's December 5, 2008, letter. Afterward, on January 9, 2009, Complainant's doctor again requested accommodation on Complainant's behalf. Id. at 353.
On March 17, 2009, the DRAC sent a letter to Complainant, noting that the committee had received Complainant's forms for reasonable accommodation on February 12, 2009, but no medical documentation was attached to support his request. Id. at 209. Days later, on March 23, 2009, Complainant responded by providing the Agency with certain medical documentation. Thereafter, on April 8, April 15, and May 6, 2009, the DRAC requested from the HR Manager of Fort Worth a list of vacant EAS-17 positions in the Fort Worth District. Id. at 299.
The Agency's DRAC subsequently held a telephone meeting with Complainant on June 25, 2009, but due to technical issues, held a second interactive in-person meeting on July 8, 2009. Id. at 299. During the meetings, Complainant once more requested to be transferred to the Fort Worth District within commuting distance from his home. On August 12, 2009, Complainant received a letter from the DRAC, which offered him a reassignment to a supervisor position with the Agency's Cleburne Post Office located within the Fort Worth District. Id. at 235. Although the Cleburne position was not on Complainant's list of places to be transferred, he accepted the position on August 14, 2009. Id. at 236.
According to Complainant, after accepting the Cleburne position, he received two Agency PS Form 50s dated August 29, 2009. Id. at 238. One form showed his base salary of $88,685 with the EAS-22 saved grade and the other showed a base salary of $70,424. Id. The Agency's HR Manager of Fort Worth explained that Complainant's saved salary was removed at that time and he was placed at the appropriate salary range for an EAS-17 Supervisor at the rate of $70,424.
On September 21, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity when:
1. From September 2, 2008, through approximately August 15, 2009, his request for reasonable accommodation was not acted on and delayed;
2. On or around August 31, 2009, his annual salary was changed from a saved salary of $88,685 to a lower salary of $70,434; and
3. On August 29, 2009, management placed him in a location that was not on the list of acceptable locations he presented to the DRAC.
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). Complainant timely requested a hearing. The AJ held a hearing on July 22, 2011, and issued a decision on September 23, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, with regard to claim 1, the AJ noted that Complainant's own actions hindered the process because he was contacting people who were not affiliated with the process for granting his request for reasonable accommodation. The AJ found that Complainant offered no evidence that the Agency's delay was motivated by discrimination. With regard to Complainant's request for accommodation in February 2009, the AJ noted that Complainant did not answer the Agency's request for additional medical documentation to process his DRAC request in a timely manner. The AJ further noted that Complainant made multiple requests for accommodation beginning in 2008, which the Agency for the most part answered in a timely fashion. The AJ indicated that when the Agency began interactive process, it proceeded within a reasonable amount of time to make a determination. The AJ also noted that any delay in the process was not unreasonable given that Complainant failed to provide the DRAC with substantial medical evidence of his condition. The AJ additionally pointed out that the Agency had agreed to recuse the head of the DRAC Committee, which led to a further delay. The AJ indicated that when the DRAC's telephone conference was disrupted with technical difficulties, a second meeting was held, leading to Complainant receiving his transfer within a couple of weeks.
With respect to claim 2, the AJ noted that the Agency's regulations provide that Complainant should have been placed at the lower $70,434 salary rate at the time of his voluntary demotion. The AJ noted that, according to the Agency's regulations, when an employee voluntarily accepts a demotion, the employee must accept the maximum salary in the lower-graded position. The AJ stated that Complainant agreed to the demotion and his pay had been properly adjusted to reflect his position.
With regard to claim 3, the AJ found that Complainant failed to establish that the Agency's placement of him in the Cleburne position was motivated by discriminatory or retaliatory animus. Namely, the AJ noted that the Agency arranged for Complainant to be placed in an office, which met his medical requirements that was within commuting distance from his home as he requested. The AJ noted that Complainant admitted that this assignment met his request for accommodation.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that on March 31, 2007, he entered into an agreement with the Agency wherein the Agency agreed to reassign him to a lower grade with the saved-pay rate of $88,685 pursuant to section 415.25 of the Agency's Employee and Labor Relations Manual (ELM). Complainant maintains that he continued to work at the EAS-22 level while assigned to Houston, but did not realize that he was having health issues at the time. Complainant asserts that the HR Manager of Fort Worth never explained to him that he needed to make his request for accommodation to the Houston District. Complainant maintains that the Fort Worth HR Manager denied his request for accommodation via letter dated September 25, 2008, stating that there was a hiring freeze. Complainant also states that the Houston HR Manager was copied in his original request for accommodation letter dated September 2, 2008. Complainant states that he requested that the chair of DRAC be removed because she said to his wife that "there was no room in the Agency for people like him." Complainant additionally contends that when he was transferred to the Fort Worth District, he was not made aware of his pay reduction until he received his pay check. Complainant maintains that his saved salary could only be terminated pursuant to 415.4 of the ELM. Complainant states that the agreement to save his pay was made between him, the Arlington Postmaster, and the Manager Agency Operations of Fort Worth in proper accordance with the ELM. Complainant indicates that the Arlington Postmaster provided an unsigned copy of the agreement pertaining to his saved salary. Complainant states that neither the Arlington Postmaster nor the Manager Agency Operations of Fort Worth were called as witnesses and believes these individuals could affect the outcome of his case.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Reasonable Accommodation and Delay (Claims 1 and 3)
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See generally 29 C.F.R. Part 1630. In order to establish that Complainant was denied a reasonable accommodation. Complainant 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. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). Under the Commission's regulations, 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. See 29 C.F.R. �� 1630.2(o) and (p).
An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation, at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n.38.
Assuming, arguendo, that Complainant established that he is a qualified individual with a disability, the Commission finds that there is substantial evidence in the record to support the AJ's determination that Complainant failed to establish that he was denied a reasonable accommodation. We note that the DRAC provided Complainant with a position within the Fort Worth District as he requested. Although the Cleburne Post Office was not on Complainant list of places to be transferred, we note that Complainant accepted the position, feeling that it met his medical restrictions. Hr'g Tr., at 62. While protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See Complainant v. Dep't of Commerce, Appeal No. 0120120625 (July 11, 2014) (citing Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994)).
We further find that that the circumstances here do not warrant a finding that the Agency unnecessarily delayed in responding to Complainant's request for reasonable accommodation. Although there was some initial confusion by the Agency regarding the processing of Complainant's initial September 2, 2008, request, management forwarded Complainant's request to the DRAC, which responded to Complainant's request on December 29, 2008. We note that the Commission has held that that an agency's failure to engage in the interactive process does not constitute a per se violation of the Rehabilitation act. See Jarvis v. U.S. Postal Serv., EEOC Appeal No. 07A30046 (Sep. 30, 2004) (citing Broussard v. U.S Postal Serv., EEOC Appeal No. 01997106 (September 13, 2002)). Rather, to establish a denial of reasonable accommodation, a complainant must show that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation. Id.
We further note that the DRAC again responded to Complainant on March 17, 2009, noting that the Committee had received Complainant's forms for reasonable accommodation on February 12, 2009, but no medical documentation was attached to support his request. We note that, after submitting certain medical documentation, the Agency's DRAC began to search for vacant positions for Complainant in the Fort Worth District. On August 12, 2009, Complainant received a letter from the DRAC, which noted that he had been assigned to a supervisor position with the Agency's Cleburne Post Office located in the Agency's Fort Worth District. We note that the Agency is entitled to medical documentation to support requests for reasonable accommodation where a complainant does not have an obvious disability demonstrating the need for the accommodation. Enforcement Guidance on Reasonable Accommodation, at Question 6. We point out that after the DRAC received the necessary documentation from Complainant, it shortly thereafter instructed the HR Manager of Fort Worth to search for a vacant position for Complainant. We further note that the DRAC was in continuous communication with Complainant regarding his request. As such, we find substantial evidence in the record supports the AJ's decision that Complainant failed to establish that the Agency violated the Rehabilitation Act.
Disparate Treatment (Claims 2 and 3)
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 he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim 2, the HR Manager of Fort Worth testified that she could not find anything in Complainant's Official Personnel File (OPF) to necessitate and continue with Complainant's saved salary rate. Hr'g Tr., at 120-125. The HR Manager of Fort Worth testified that, based on the ELM, she thought that the agreement to save Complainant's salary was a violation of Agency regulations. Id. The HR Manager of Fort Worth further testified that she did not wish to continue to facilitate a violation of the ELM, so she adjusted Complainant pay to reflect the maximum of an EAS-17. Id. The HR Manager of Fort Worth additionally testified, with respect to claim 3, that she reviewed the list of Complainant's preferred locations, but the Cleburne Supervisor position was the only available position within the Fort Worth District at the time. Id. at 111-114. The HR Manager of Ft. Worth testified that the Cleburne position was a small facility within a short commuting distance from Complainant's home, as Complainant's doctor requested. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. In attempt to show pretext, Complainant states that the agreement to save his pay was made between him, the Arlington Postmaster, and the Manager Agency Operations of Fort Worth in proper accordance with the ELM. Complainant indicates that the Arlington Postmaster provided an unsigned copy of the agreement pertaining to his saved salary. Complainant further believes that there were other locations that he could have been assigned to in accordance with his request for accommodation.
While Complainant may have entered into an agreement to save his salary, we can evidence in the record that the HR Manager of Fort Worth was motivated by discriminatory or retaliatory animus when she lowered his salary to the maximum for an EAS-17 grade. Even assuming that the HR Manager of Fort Worth misinterpreted the Agency's ELM, there is simply no evidence that she lowered Complainant's pay based on his protected classes. We note that the Commission has held that, standing alone, an administrative mistake is insufficient to establish pretext. See Dedier v. U.S. Postal Serv., EEOC Appeal No. 07A20007 (Aug. 4, 2004) (citing Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000)). Lastly, with regard to claim 3, we note that although the Cleburne Post Office was not on Complainant's list of places to be transferred, there is no dispute that he accepted the position, feeling that it met his medical restrictions. Hr'g Tr., at 62
Therefore, we find that substantial evidence in the record supports the AJ's decision that Complainant failed to establish that the Agency's reasons were pretext for discrimination or were motivated by discriminatory or retaliatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
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
0120120549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120549