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.