0120103056
07-11-2012
David L. Chouteau, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
David L. Chouteau,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120103056
Hearing No. 550-2010-0068X
Agency No. 1F-942-0036-10
DECISION
On July 9, 2010, Complainant filed an appeal from the Agency's June 16, 2010 final decision concerning his equal employment opportunity (EEO) complaint alleging 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in a limited duty position at the Agency's San Francisco Network Distribution Center in Richmond, California. Due to the drastic decrease in mail volume and the increased use of automated equipment, in November 2009, pursuant to the National Reassessment Program (NRP), the Distribution Center underwent a review of the modified job assignments and rehabilitation job offers of all limited duty employees, task by task, to ensure that they consisted solely of "operationally necessary tasks." The review was conducted by the District Assessment Team (DAT). The DAT was charged with identifying the operationally necessary tasks at the Distribution Center and then determining if the limited duty employees could perform them. If there were no operationally necessary tasks that limited duty employees could perform in their facility on their assigned tour, the DAT would then look to other mail facilities and/or tours to see if tasks existed there.
The DAT was not able to find available operationally necessary tasks for several employees at the Distribution Center, and as a consequence, they received notice that there was no work available for them to perform. When Complainant received such notice, he sought EEO counseling and subsequently filed an EEO complaint alleging that the Agency's action was discriminatory on the bases of race (Black), sex (male), disability, and age (46).1 At the conclusion of the investigation of the Title VII and ADEA claims, 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). The Agency did not receive notice of Complainant's hearing request, see infra, and issued a final decision on June 16, 2010.
In its decision, the Agency found that Complainant failed to establish a prima facie case of race, sex or age discrimination because he did not identify any similarly situated individuals who were treated more favorably than he was. The Agency noted that there was one individual who Complainant identified, a significantly older male but of a different race, who remained working. According to the Agency, unlike Complainant, this individual did not have severe physical restrictions. Rather, there was only a limit on the number of hours he could work each day whereas Complainant's restrictions significantly controlled both the nature and number of duties he could perform. The Agency explained that its actions were completely consistent with the guidelines of the NRP and were in no way motivated by the race, age, or gender of Complainant or any other of the affected employees.
Complainant appealed the Agency's final decision. On appeal, he did not object to the Agency's issuance of its decision. He did, however, state the following:
I can't believe because management says something, they get believed. They are the masters at lies and deception. They hide their wrongdoings very well. There's nothing right about the NRP program at least in the way they are treating us.
Appeal Statement at 2.
ANALYSIS AND FINDINGS
I. The McConnell Class Action
On May 30, 2008, an EEOC AJ granted class certification in McConnell, defining the class as all permanent rehabilitation employees and limited duty employees at the Agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act. The AJ defined the McConnell claims as follows: (1) The NRP fails to provide a reasonable accommodation (including allegations that the NRP "targets" disabled employees, fails to include an interactive process, and improperly withdraws existing accommodations); (2) The NRP creates a hostile work environment; (3) The NRP wrongfully discloses medical information; and (4) The NRP has an adverse impact on disabled employees. The Agency did not implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class and the claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell, et al. v. United States Postal Service, EEOC Appeal No. 0720080054 (January 14, 2010).
Upon review, we find that the Agency correctly subsumed Complainant's disability complaint into the McConnell class complaint. Specifically, in his formal complaint, Complainant alleged that the Agency denied him the opportunity to work within his restrictions and sent him home. The Agency's actions giving rise to this complaint are directly related to the NRP, and the adverse treatment Complainant allegedly received is clearly included in the defined class claims.
II. The Agency's Decision
There is no dispute that Complainant did not produce any direct evidence of discrimination, and the Agency correctly determined that Complainant failed to present evidence sufficient to support an inference of sex, age or race discrimination. He did not identify younger women of a different race who were allowed to remain working, and the Agency explained that the older White male employee who Complainant did identify was simply not similarly situated to Complainant because his medical restrictions were so much less severe that productive work was available for him. Consequently, no reasonable fact finder could conclude that the Agency violated Title VII or the ADEA with regard to the claim herein.
III. The AJ's Decision
When the Agency realized that Complainant had requested a hearing, it rescinded its June 16, 2010 final decision. The AJ assigned to the case was unaware that Complainant had timely appealed the Agency's final decision, and as a result, he issued a show cause order directing Complainant to explain why he had failed to appeal. Because Complainant did not respond to the AJ's order, the AJ dismissed the Title VII claims, and on September 16, 2010, the Agency issued a final order adopting the AJ's disposition.2 As noted above, Complainant did not object to not having a hearing. Consequently, we decline to disturb the Agency's June 16, 2010 final decision on the merits.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision.
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
July 11, 2012
__________________
Date
1 The Agency determined that the portion of Complainant's complaint alleging disability discrimination was a claim properly subsumed into the McConnell class action.
2 The AJ also agreed that the disability claim was correctly subsumed into the McConnell class action.
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0120103056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103056