Eugenio Urista, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionMay 13, 2005
01a42728 (E.E.O.C. May. 13, 2005)

01a42728

05-13-2005

Eugenio Urista, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Eugenio Urista v. United States Postal Service

01A42728

May 13, 2005

.

Eugenio Urista,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01A42728

Agency No. 4G-870-0104-03

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint 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., 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 appeal is accepted pursuant to 29 C.F.R. �

1614.405. For the following reasons, the Commission AFFIRMS the agency's

final decision.

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

as a Mail Processing Clerk at the agency's Las Cruces, New Mexico

facility. Complainant sought EEO counseling and subsequently filed a

formal complaint on April 25, 2003, alleging that he was discriminated

against on the bases of race (Hispanic), sex (male), disability, and age

(born August 26, 1955) when on February 20, 2003, the agency accommodated

a younger Anglo female with less strenuous duties, while complainant

was assigned duties which exacerbated his pre-existing condition.

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. In its FAD,

the agency concluded that complainant had not established a prima facie

case of discrimination. The agency further found that complainant failed

to prove that the agency's legitimate, non-discriminatory reasons for

its actions were pretext for discrimination.

On appeal, complainant contends that the FAD erred when it found that

he was not subjected to unlawful discrimination. As a preliminary

matter, we note that we review the decision on an appeal from a final

agency decision de novo. 29 C.F.R. � 1614.405(a). Accordingly, we have

carefully reviewed the entire record before us in our attempt to discern

whether a preponderance of the evidence warrants a modification of the

agency's ruling. See 29 C.F.R. � 1614.405(a).

Disparate Treatment

We note initially that, 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. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to reprisal 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 proffered

by the agency was a pretext for discrimination. Id. at 256.

The record contains a limited duty assignment offer dated December

2000 assigning complainant to sedentary desk work. The job duties for

that assignment included manual distribution of letters; first class

manual work; return-to-sender processing; loop mail; operating flat

sorting machines; repairing damaged mail; and picking up mail from

the airport. Complainant signed the offer on December 27, 2000.<1>

The record also contains a Duty Status Report dated February 13, 2003

signed by complainant's physician. The report stated that complainant

was restricted from lifting continuously or intermittently more than

three pounds a week; standing or walking more than one hour per week

except as tolerated; bending or stooping; twisting, pulling/pushing,

operating machinery; or reaching above the shoulder continuously or

for more than two hours intermittently per day. The physician stated

that complainant should be assigned permanently to sedentary desk work

within the noted restrictions. A Duty Status Report dated July 25,

2003 contained identical information.

Complainant alleges that the agency accommodated a younger White female

with less strenuous duties, while he was assigned duties which exacerbated

his pre-existing condition. In an affidavit, complainant identified five

work duties he performed: processing return to sender mail while sitting

at a table; processing loop mail<2> while sitting at a table; driving

to airport to pick up incoming mail; operating the flat sorting machine

by feeding material into the device; and repairing mail while sitting at

a table. Complainant contends that he should only perform sedentary desk

work because that is the only assignment within his work restrictions.

Moreover, the record reveals that the comparative employee was given a

limited duty assignment on December 9, 2002 to repair mail, work loop

mail at a desk, answer phones, and work wall mail in the box section.

The comparative employee was permanently restricted on December 6, 2002

from lifting more than fifteen pounds per day with the left side of her

body and seven pounds with the left side of her body, bending/stooping

more than one hour per day, twisting more than two hours per day,

pulling/pushing more than fifteen pounds per day, operating machinery,

and reaching above the shoulder.

Upon review, we first note that the record reveals that complainant was

supervised by a different supervisor than the comparative employee.

Moreover, complainant's restrictions were much more extensive than

the restrictions of the comparative employee. We therefore find that

complainant failed to demonstrate that a similarly situated employee

not within his protected classes was treated more favorably than he or

present any other evidence from which an inference of discrimination could

be made. Nevertheless, assuming arguendo that complainant established

prima facie cases of discrimination, we determine that the agency offered

legitimate, non-discriminatory reasons for its actions.<3> Specifically,

the agency maintained that complainant only performed sedentary desk

work during the relevant time period and denied complainant's claim that

he picked up mail at the airport and operated machinery. Complainant

failed to provide any evidence to rebut the agency's claim that he

was only assigned non-desk work within his restrictions. Moreover,

complainant failed to specify how his work duties were more strenuous

than the comparative employee, who was assigned to repair damaged mail,

work return-to-sender and loop mail, answer telephones, and box mail.

Consequently, we find that complainant failed to rebut the agency's

legitimate, non-discriminatory reasons for its actions with evidence

of pretext.

Reasonable Accommodation

Complainant also argues that the agency failed to accommodate his

disability when it assigned him to pick up mail and operate machinery,

activities that violated his medical restrictions. Again assuming

arguendo that complainant is a qualified person with a disability

entitled to coverage under the Rehabilitation Act, we find that

complainant failed to prove that the agency did not provide him with a

reasonable accommodation. In so finding, we note that the Postmaster and

complainant's immediate supervisor maintain that during the relevant time

period, complainant was only assigned the sedentary desk work tasks of

processing return-to-sender mail and loop mail. Complainant's supervisor

further maintained that since 2001, he has not assigned anyone to pick

up mail at the airport. We conclude that the evidence before us is in

equipoise on the question of whether complainant was assigned to pick

up mail or operate machinery. Because it is complainant's burden to

his claim prove by a preponderance of the evidence, we find that he has

failed to prove that he was denied reasonable accommodation.

Therefore, after a careful review of the record, including complainant's

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

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

decision finding no discrimination.

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:

______________________________ _May 13, 2005______

Carlton M. Hadden, Director Date

Office of Federal Operations

1We note that the final agency decision states that the relevant limited

duty assignment began in June 1999. However, the record reveals that

complainant subsequently accepted another limited duty assignment on

December 27, 2000, which is the pertinent assignment in this matter.

2In his investigative affidavit, complainant explained that working loop

mail entailed marking out bad zip codes and writing in the correct one.

3We specifically note that for purposes of analysis, we assume arguendo

that complainant is a qualified individual with a disability entitled

to coverage under the Rehabilitation Act.