Daniel Porter, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 12, 2003
01a02013_et (E.E.O.C. Feb. 12, 2003)

01a02013_et

02-12-2003

Daniel Porter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Daniel Porter v. United States Postal Service

01A02013 et al.

February 12, 2003

.

Daniel Porter,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 01A02013, 01A02048

01A02629, 01A02978

01A10065, 01A11895

01A14227, 01A20079

Agency Nos. 4D-280-0143-98, 4D-280-0165-98

4D-280-0200-99, 4D-280-0262-99

4D-280-0291-99, 4D-280-0040-00

4D-280-0172-01

DECISION

INTRODUCTION

Complainant timely initiated several appeals from final agency decisions

concerning his complaints of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeals are accepted pursuant to 29

C.F.R. � 1614.405. For the following reasons, the Commission affirms

the agency's final decisions.

ISSUES PRESENTED

The issue presented herein are whether complainant has proven by

preponderant evidence that he was subject to discrimination on the

bases of sex (male), disability (both thumbs, left elbow), age (d.o.b.,

October 9, 1942), and reprisal (prior EEO activity) when: (1) on March 30,

1998, management failed to provide him with duties within his physical

restrictions, (2) on March 30, 1998, the agency issued him a notice of

removal; (3) on July 2, 1998, he was given a notice of removal; (4) on

May 4, 1999, his supervisor confronted him for using the bathroom too

much; (5) on July 8, 1999, his request for four hours of advanced sick

leave was denied; (6) on July 8, 1999, management violated the Privacy

Act by making a copy of his medical documentation; (7) on September 7,

1999, he was told not to report back to work until further notice;

(8) on October 11, 1999, he was issued a notice of proposed removal;

(9) on December 22, 1999, management tried to stop him from collecting

unemployment compensation; (10) on May 3, 2001, his life insurance was

terminated; (11) on May 23, 2001, he received a bill from the agency for

$1,230.24; and (12) on May 23, 2001, he received a bill from the agency

for $729.61 for overdrawing 42.96 hours of annual leave.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Distribution Clerk, PS-5, at the agency's postal facilities in

Wilmington, North Carolina. Complainant sought EEO counseling and

subsequently filed eight formal complaint in which he alleged what has

been described as the issues presented.

The agency dismissed issues (2) and (6) through (12), and investigated the

remaining ones. At the conclusion of the investigations, 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. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued final decisions, in which it

found no discrimination.

ANALYSIS AND FINDINGS

Allegations (2) and (9)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that

is pending before or has been decided by the agency or Commission.

Upon review, we find that allegation (2) was decided by the Commission in

Porter v. United States Postal Service, EEOC Appeal No. 01987047 (August

5, 1999), and allegation (9) was decided by the Commission in Porter

v. United States Postal Service, EEOC Appeal 01A03142 (July 6, 2002).

Consequently, these issues are dismissed pursuant to �1614.107(a)(1).

Allegation (6)

In this allegation, complainant alleges that the agency violated the

Privacy Act by making copies of his medical records. The Privacy Act,

5 U.S.C. � 552(g)(1), however, provides an exclusive statutory framework

governing the disclosure of identifiable information contained in

federal systems of records and jurisdiction rests exclusively in the

United States District Courts for matters brought under the provisions

of the Privacy Act. Bucci v. Department of Education, EEOC Request

Nos. 05890289, 05890290, 05890291 (April 12, 1989). Therefore, the

agency's decision to reject complainant's claim concerning a violation

of the Privacy Act for failure to state a claim was proper.

Allegations (7) and (10) through (12)

The agency dismissed these allegations pursuant to 29 C.F.R. �

1614.107(a)(4), which provides for dismissals where the complainant has

previously raised the matter in a negotiated grievance procedure that

permits allegations of discrimination or in an appeal to the Merit Systems

Protection Board (MSPB). Upon review, we find that these allegations

were properly dismissed because they had been raised before the MSPB.

Allegation (8)

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,

that the agency shall dismiss a complaint that alleges that a proposal to

take a personnel action, or other preliminary step to taking a personnel

action, is discriminatory. In this allegation, complainant alleged

discrimination when the agency gave him a notice of proposed removal.

Consequently, we find that this allegation was appropriately dismissed

pursuant to � 1614.107(a)(5).

Merit-Based Determinations - Allegations (1), (3) through (5)

A. Allegation (1)

In this allegation, complainant claims he was subjected to discrimination

when, on March 30, 1998, management failed to provide him with

duties within his physical restrictions (i.e., no repetitive thumb

motions). Under the Commission's regulations, an agency is required

to make reasonable accommodation 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.<1>

29 C.F.R. �1630.9. The Commission also notes that an employee must show

a nexus between the disabling condition and the requested accommodation.

See Wiggins v. United States Postal Service, EEOC Appeal No. 01953715

(April 22,1997).

During the relevant time, complainant's job duties involved nixing

mail and answering the telephone. This was a limited duty position.

On March 30, 1998, complainant's supervisors were informed by the Injury

Compensation Office that complainant should be given a permanent job

offer. The permanent job offer extended complainant's duties to include

sorting mail. When complainant refused the offer due to his restrictions,

management asked him for medical documentation because the documentation

that had been provided was outdated and not clear as to complainant's

limitations. Complainant refused to provide that information to the

agency. Consequently, he failed to prove that the job duties offered

to him on March 30, 1998, were outside of his physical restrictions.

Thus, we affirm the agency's finding of no discrimination.<2>

B. Allegations (3) through (5)

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether s/he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Here, the agency has articulated legitimate, nondiscriminatory reasons

for its actions. Specifically, the agency stated that complainant was

issued a notice of removal, which was later rescinded, because he did not

pass the scheme training. The agency stated that complainant was told

not to use the bathroom too much because doing so violated the agency's

break policy. Finally, the agency stated that complainant's request for

four hours of advanced sick leave was denied because he failed to present

the proper documentation. The agency noted that complainant's request

was ultimately approved after he submitted the proper documentation.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory events, complainant now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Complainant can do this by showing

that the agency was motivated by a discriminatory reason. Id. (citing

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,

complainant has not proffered any evidence tending to show that the

agency's articulated reasons were designed to mask discriminatory animus.

CONCLUSION

After a careful review of the record, including complainant's contentions

on appeal, the agency's response thereto, and arguments and evidence

not specifically addressed in this decision, we hereby affirm the final

agency decisions.

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

February 12, 2003

__________________

Date

1In this case, we presume, without finding, that complainant is a

qualified individual with a disability.

2 We note that after complainant refused to provide the requested medical

documentation, management contacted his doctors to obtain that information

on its own. According to affidavits provided by management, the duties

offered on March 30 were within complainant's physical limitations per

the information they received from complainant's doctors.