Jerry D. Guest, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 27, 2001
01984145 (E.E.O.C. Jul. 27, 2001)

01984145

07-27-2001

Jerry D. Guest, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jerry D. Guest v. United States Postal Service

01984145

July 27, 2001

.

Jerry D. Guest,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01984145

Agency No. 4-G-730-0052-97

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination in

violation of 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.

ISSUE PRESENTED

The issue presented herein is whether complainant has established that

the agency discriminated against him on the bases of age (DOB: January 7,

1948) and disability (myositis and myofascitis)<1> when on November 23,

1996, he was forced to accept a job outside of his medical restrictions.

BACKGROUND

The record indicates that complainant was a Distribution Clerk, PS-5,

at the agency's Processing and Distribution Center in Oklahoma City,

Oklahoma. Complainant had been working in the Rural Carrier Craft.

Following an on-the-job injury, he was offered a limited duty job in the

Clerk Craft on January 3, 1992. The record indicates that complainant

was still technically assigned to the Rural Carrier Craft, however,

assigned duties in the Clerk Craft since there was no work available as

a Carrier. In 1993, when complainant provided medical documentation

indicating that he could no longer perform the duties of the Rural

Carrier Craft, he was reassigned to the Clerk Craft. He filed a claim

with the Office of Workers' Compensation Programs (OWCP) which approved

disability retirement effective March 27, 1995.

The record further indicates that complainant's physician released

him to return to work. Based on information from OWCP, the agency

offered complainant a limited duty assignment in the Clerk Craft.

Complainant refused this position citing his medical limitations.

The agency reissued the position to complainant reducing his duty hours

from eight hours to four hours.<2> Then, on October 16, 1996, OWCP found

that the Clerk position complainant was offered was compatible with his

work restrictions. The OWCP notice also stated that if he failed to

accept this offered position and to demonstrate justification for his

failure to accept, his compensation would be terminated. On October 21,

1996, complainant requested that his physician (Physician) review the job

offer and provide him justification to refuse the position. On November

8, 1996, the Physician indicated that it would be in complainant's best

interest to return to work for four hours a day within the restrictions.

The Physician noted that complainant would experience some fatigue

initially but within one to two weeks, he would be able to return to an

eight hour work day. Complainant accepted the job by letter on November

11, 1996. The agency informed him that he was to report to work on

November 23, 1996.

Believing he was a victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on March 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. Complainant

requested that the agency issue a final decision.

In its FAD, the agency found, assuming that complainant established

a prima facie case of disability discrimination, that it provided

complainant with a reasonable accommodation by providing him with a

position within his medical restrictions. Furthermore, it noted that

complainant did not notify management that the position was not within his

limitations, otherwise it would have looked into the matter seriously.

Finally, as to complainant's claim of age-based discrimination,

complainant failed to establish a prima facie case in that there was

no indication that the agency's action was based on any discriminatory

animus towards his age. Accordingly, the agency issued its FAD finding

no discrimination.

This appeal followed. In his appeal, complainant raises claims pertaining

to the reassignment in 1993 to the Clerk Craft. In particular,

complainant states that it was in violation of agency policy and

done in order to terminate his seniority in the Rural Carrier Craft.

Complainant also makes allegations that he was denied night differential

and Sunday pay based on a decision by OWCP. As to the job offer in 1996,

complainant indicates that after he refused the position, the agency

was on notice that the position was not within his medical restrictions.

Complainant asserts that the agency failed to make any attempt to find

him work within his restriction. Instead, complainant contends that he

was forced to accept the position and felt that OWCP would find that

this job was suitable for him. Finally, complainant points out that

the Physician's note is hopeful and not definitive as to what he can do.

ANALYSIS AND FINDINGS

Claim on Appeal Regarding OWCP

The Commission has held that a complainant states a claim where he or

she alleges that, motivated by discriminatory animus, the agency took

specific steps to interfere with a workers' compensation claim. Bray

v. United States Postal Service, EEOC Appeal No. 01944243 (February 6,

1995), req. to reopen den., EEOC Request No. 05950410 (February 1, 1996);

Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29,

1994); O'Neal v. United States Postal Service, EEOC Request No. 05900620

(August 30, 1990). These cases typically involve failure of the agency

to provide information or signatures necessary to process the workers'

compensation claim. See id.

To an extent in his statement on appeal, however, complainant alleged

improper decisions from OWCP. To address this aspect of his appeal, the

Commission would have to review the determinations of OWCP. Review of

OWCP determinations is not within the jurisdiction of the Commission, and

does not fall within the limited circumstances under which a complainant

may appeal to the Commission. See Hogan, EEOC Request No. 05940407

(September 29, 1994); Gray v. Department of the Army, EEOC Appeal

No. 01944944 (August 8, 1995). Accordingly, we will not address this

portion of complainant's appeal.

Claim of Reasonable Accommodation

In his complaint, complainant contends that the agency forced him to

accept an assignment outside of his working restrictions. In essence,

complainant is alleging that the agency failed to provide him with a

reasonable accommodation. Under the Commission's regulations, an agency

is required to make reasonable accommodation for the known physical and

mental limitations of a qualified individual with a disability unless

the agency can show that accommodation would cause an undue hardship. 29

C.F.R. � 1630.2(o); 29 C.F.R. � 1630.2(p).

To establish a prima facie case of disability discrimination under

a disparate treatment and/or a failure to accommodate theory, the

complainant must demonstrate that: (1) he is an "individual with a

disability"; (2) he is "qualified" for the position held or desired;

(3) he was subjected to an adverse personnel action under circumstances

giving rise to an inference of disability discrimination and/or denied

a reasonable accommodation. Lawson v. CSX Transp., Inc., 245 F.3d 916

(7th Cir. 2001). As to the first step of a prima facie case, the agency

does not contest that complainant has an impairment which substantially

limits him in one or more major life activity or that he is qualified.

Therefore, we assume that complainant has met this burden.

Finally, complainant must show that he was denied a reasonable

accommodation. Upon review of the record, the Commission finds that

the agency has fulfilled its obligation under the Rehabilitation Act.

Following a decision from OWCP indicating that complainant was released

to work by his physician, on September 25, 1996, the agency informed

complainant that it had identified an appropriate position for him and

that he had thirty days to accept this offer. Complainant declined the

limited duty assignment on September 30, 1996, stating that the position

did not meet his work restrictions. On October 7, 1996, the agency

then revised the position based on complainant's statements, to limit

the position to four hours and gave complainant another thirty days to

respond to their offer. On October 16, 1996, OWCP informed complainant

that it found the offered position suitable and on November 8, 1996,

the Physician indicated that �it would be in [the complainant's] best

interest to make a trial of returning to work four hours a day with

work restrictions.� Report of Investigation, p. 48.<3> Upon review of

the record, it appears that the offered position in the Clerk Craft is

within complainant's medical restriction. Accordingly, we find that the

agency provided complainant with a reasonable accommodation.

Age Discrimination

As to the remaining basis, complainant claims that the agency treated

him differently on the basis of age. A claim of disparate treatment

is examined under the three-part analysis first enunciated in McDonnell

Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to

prevail, he must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978);

Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). The burden then shifts

to the agency to articulate a legitimate, nondiscriminatory reason for its

actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. United States

Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Upon review, the Commission finds that the agency has met its burden of

articulating legitimate, nondiscriminatory reasons for its actions.

The record indicates that the agency took its action based upon

information from OWCP revealing that complainant had been released by

his physician to return to work with restrictions. Based on OWCP's

information and complainant's response to their initial assignment,

the agency offered complainant a limited duty position in the Clerk Craft.

Having found that the agency has articulated a legitimate,

nondiscriminatory reason for its action, the burden now turns to

complainant to demonstrate that the agency's reasoning was pretext for

discrimination. Upon review of the record, the Commission finds that

complainant has failed to do so. Complainant contends that the agency

and OWCP have operated to deny him his rights and is demonstrated by

the assignment to a position outside of his restrictions. We find that

these arguments do not establish that the agency's reasons were merely

to mask unlawful discrimination on the basis of age.

CONCLUSION

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 agency's

final decision.

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

July 27, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 The record indicates that complainant has pain in his neck, shoulders,

and upper back.

2 The position involved repairing torn/damaged letters, flats, and

magazines. The physical requirements of the position included the ability

to sit up to four hours, lift up to five pounds, and manual manipulation

of letter pieces. The job offer did note that walking was only required

for personal needs.

3 The Commission notes that the Physician does not indicate that the

position is outside of complainant's physical limitations.