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.