0320120037
03-26-2013
Donell Ellis, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Donell Ellis,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Petition No. 0320120037
MSPB No. DA-0752-11-0496-I-1
DECISION
Petitioner filed a timely petition1 with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) on September 27, 2012, concerning his claim that the Agency discriminated against him on the bases of disability, age (55), and reprisal for prior protected EEO activity when it removed him from his Mail Processing Clerk position in violation of 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.
After an October 14, 2011 hearing, an MSPB Administrative Judge (MSPB AJ) issued a decision finding that the Agency did not discriminate against Petitioner as alleged.
In sustaining the charge of "Refusal to Perform the Functions of Your Position," the MSPB AJ found that Petitioner refused to perform the duties of his modified Mail Processing Clerk position between June 30, 2010 and his removal on October 22, 2010 because he thought they were incompatible with his medical restrictions. In addition, the MSPB AJ found that Petitioner's refusal was not justified because the Department of Labor's Office of Workers' Compensation Programs determined that the modified position was compatible with his medical restrictions. Further, the MSPB AJ credited the testimony of Petitioner's First Level Supervisor (S1) and the Postmaster (P1) that Petitioner had a modified case for sorting mail. In doing so, the MSPB AJ noted that their straightforward demeanor bolstered their credibility and their testimony was corroborated by the Agency's submission of information to OWCP with photographs and descriptions of how the case and sorting process had been modified.
In finding no denial of reasonable accommodation, the MSPB AJ determined that the Agency provided Petitioner with the OWCP-approved modified position. In addition, the MSPB AJ found that the medical documentation from Petitioner's physician indicated that he should have been able to perform the duties of the modified position. Further, the MSPB AJ found that although the Agency repeatedly asked Petitioner for medical documentation which could substantiate his claims that he could not perform the duties of his modified position, Petitioner failed to provide such documentation.
In finding no disparate treatment, the MSPB AJ initially found that the Agency articulated a legitimate, nondiscriminatory reason for Petitioner's removal; namely, Petitioner refused to perform his duties and did not provide substantiating medical documentation. Next, the MSPB AJ found that Petitioner failed to show that the Agency's explanation was a pretext for discrimination on the bases of disability, age, or reprisal. Specifically, the MSPB AJ found that the two employees Petitioner identified as potential comparators were not similarly situated because neither of them refused to perform their assigned duties while simultaneously failing to produce requested medical documentation to substantiate their refusal. In addition, the MSPB AJ found that testimonial evidence that S1 yelled at or was rude to two co-workers with work-related injuries did not establish that he harbored animus against the disabled or that he considered persons with disabilities indolent or otherwise undesirable. Further, the MSPB AJ found that the only evidence Petitioner presented to support his claim of age discrimination was his speculation that his removal was based on his age. Finally, the MSPB AJ found that a co-worker's non-specific testimony that S1's "harassment" of Petitioner "increased tremendously" after Petitioner engaged in protected activity was insufficient to show that Petitioner's removal was retaliatory.
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
After a careful review of the record, the Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
First, we agree with the MSPB that Petitioner failed to establish that his modified position was not an effective accommodation. In his petition, Petitioner essentially argued that the modified position exceeded his medical restrictions because: (1) his medical documentation stated that sorting mail caused his injury; and (2) his medical documentation prohibited repetitive motion with respect to his shoulders. While a June 14, 2010 OWCP Duty Status Report described sorting mail as the cause of Petitioner's injury, the MSPB AJ credited testimony from S1 and P1 that the mail sorting process was modified to comply with Petitioner's medical restrictions. Petitioner has not presented any documentary evidence to show that the MSPB AJ erred in crediting such testimony.2 Moreover, we note that the June 14, 2010 OWCP Duty Status Report stated "non-repetitive" only with respect to "Fine Manipulation (includes keyboarding)" and Petitioner has not shown how sorting mail required such repetitive "fine manipulation."
Second, we agree with the MSPB that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's articulated reason for his removal was a pretext for disability, age, or reprisal discrimination. Petitioner raised several pretext arguments in his petition. Regarding Petitioner's argument that S1 singled him out on several occasions between January 2009 and June 2010, there is insufficient evidence in the record that S1's actions on those dates were based on Petitioner's protected classes. Regarding Petitioner's argument that S1 made an age-related statement by telling him that "at some time you just have to know when to go home," Petitioner himself admitted that S1 made that statement in the context of police escorting him from the facility. We are not persuaded by Petitioner's assertion that S1's statement is evidence of age-based animus. Regarding Petitioner's argument that S1 and P1 wanted to force him to retire because of a conversation he had with them about his retirement, we find that Petitioner's argument is speculative as to the motivations of S1 and P1. Regarding Petitioner's argument that he established a causal connection between his protected activity and his removal because P1 knew about his protected activity, we emphasize that a decisionmaker's knowledge about an employee's protected activity does not by itself establish that the adverse action was based on the protected activity.
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
___3/26/13_______________
Date
1 Petitioner filed a petition for review by the full Board prior to filing the instant petition with the Commission. Subsequently, the full Board issued a final order on September 27, 2012 denying Petitioner's petition. Therefore, Petitioner's initial petition to the Commission was premature but the issuance of the final order has cured the petition.
2 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.B. (Nov. 9, 1999).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320120037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0320120037