01995996
09-10-2002
Eddie Phemister, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Eddie Phemister v. United States Postal Service
01995996
9/10/02
.
Eddie Phemister,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01995996
Agency No. 4G-760-0292-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that he was
discriminated against on the basis of disability (right foot and leg)
when he was reassigned from a Full-Time Permanent Limited Duty City
Carrier to a Modified Limited Duty Part Time Flexible Distribution Clerk.
The record reveals that during the relevant time, complainant was employed
as a Full-Time Permanent Limited Duty City Carrier at the agency's
Poly Station, Fort Worth, Texas facility. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on August 20, 1997. At the conclusion of the
investigation, 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 a
final decision.
Complainant alleged that the agency discriminated against him as
referenced above when he was reassigned to the Modified Limited
Duty Part Time Flexible Distribution Clerk position pursuant to the
agency's interpretation of a 1994 Arbitrator's decision. (�The Snow
Award�).<1> The duties of the Limited Duty position to which he was
reassigned included answering the phone, separating mail, ordering
supplies, inputting data into the computer and other duties within
his restrictions. The physical requirements of the position included
the intermittent ability to sit, stand, and walk, as well as grasping,
lifting, and working eight hours per day.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination because he failed to establish the
agency's actions were motivated by unlawful discrimination on the basis
of disability. Indeed, the agency found complainant was accommodated
when he was reassigned and offered the Modified Limited Duty Part Time
Flexible Distribution Clerk.
Furthermore, the agency maintained that it acted legitimately when
complainant was reassigned to the Part Time Flexible position as a
result of the Snow Award. Specifically, the agency noted the decision
required the agency to �cease and desist from reassigning partially
recovered employees to full time status when those reassignments
impair the seniority of part time flexible employees.� FAD at p.4.
The agency found that the complaint involved a contractual issue and
was not discriminatory.<2>
Complainant makes no contentions on appeal. The agency asks that we
affirm its final decision.
As a threshold matter complainant must establish that he is a �qualified
individual with disability� within the meaning of the Rehabilitation
Act.<3> Assuming, arguendo, that complainant is a qualified individual
with a disability, we find that he failed to establish that the agency
failed to accommodate his disability when it reassigned him to a part
time position with less seniority. We note that because this case arose
prior to June 20, 2002, the Commission will apply 29 C.F.R. � 1614.203(g),
its prior regulation regarding reassignment.<4>
In the case at hand, it is not clear whether the agency conducted a
search to ascertain whether there were any funded vacant full time
positions for which complainant was qualified at the same seniority
level as his current position. Even assuming, however, that the agency
failed to conduct an adequate search for a full time position before
offering complainant the part time position, the agency's failure to
conduct either any search at all, or a broad enough search, for a new
position for complainant does not, by itself, result in a finding of
discrimination. See Key v. United States Postal Service, EEOC Appeal
No. 07A20001 (August 2, 2002); Barnard v. United States Postal Service,
EEOC Appeal No. 07A10002 (August 2, 2002). Rather, the record must be
examined for evidence that, had the search been conducted, there would
have been an appropriate vacancy available. Id.
The complainant has an evidentiary burden in such reassignment cases
to establish that it is more likely than not (preponderance of the
evidence) that there were vacancies during the relevant time period
into which complainant could have been reassigned. See Key, supra;
Barnard, supra; see also Hampton v. United States Postal Service,
EEOC Appeal No. 01986308 (August 1, 2002). Clearly, complainant can
establish this by producing evidence of particular vacancies. However,
this is not the only way of meeting complainant's evidentiary burden.
In the alternative, complainant need only show that: (1) he or she was
qualified to perform a job or jobs which existed at the agency, and (2)
that there were trends or patterns of turnover in the relevant jobs so
as to make a vacancy likely during the time period. See Hampton, supra.
Here, complainant failed to meet this burden.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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
9/10/02
Date
1The �Snow Award� refers to an arbitrator's decision issued by an
arbitrator Carlton Snow on February 7, 1994, in which he found the
reassignment of a partially recovered employee to a full time regular
position in the Clerk craft violated the National Agreement between the
agency and the American Postal Workers Union, because it impaired the
seniority rights of PTF workers already in the Clerk craft. See Exhibit
5, Report of Investigation
2The agency also noted that Arbitrator Snow changed his position in 1998,
following complainant's reassignment. Furthermore, the agency was in
the process of challenging the 1998 decision.
3The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
4 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the Federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.