01963729
10-08-1998
Jesus A. Tamayo, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jesus A. Tamayo v. United States Postal Service
01963729
October 8, 1998
Jesus A. Tamayo, )
Appellant, )
) Appeal No. 01963729
v. ) Agency No. 4-H-330-1465-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated 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 et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
appellant based on physical disability (osteoarthrosis of the spine),
mental disability (post traumatic stress disorder), national origin
(Hispanic), race (Caucasian), and age (61) when he was removed from his
T-5 position.
BACKGROUND
Appellant filed a formal complaint in June 1995 in which he alleged
that he had been discriminated against when he was removed from his
T-5 position. Following an investigation, appellant did not request
an administrative hearing, and the agency proceeded to issue a final
decision dated March 19, 1996, finding no discrimination. It is from
this decision that appellant now appeals.
The record reveals that appellant has a degenerative condition in his
spine known as osteoarthrosis. The most recent medical evidence of
record reveals that this condition restricts appellant's ability to lift
more than 10 to 20 pounds, stoop, kneel, and bend repeatedly. There is
also a medical report dated June 12, 1991, which states that appellant is
precluded from prolonged standing. By union agreement dated May 12, 1993,
the agency agreed to accommodate appellant's restrictions by transferring
him into the position of T-5 until the individual (Employee A) who
held that position returned to work.<0> The agreement provided that,
at that point, appellant would be assigned to a window clerk position.
On April 28, 1995, prior to the return of Employee A, appellant was
removed from the T-5 position and placed into a window clerk position.
The Manager, Customer Services testified that appellant was removed
"due to his attitude and lack of willingness to be a team player."
ANALYSIS AND FINDINGS
Reasonable Accommodation
Appellant has alleged that, in moving him from the T-5 position,
the agency failed to reasonably accommodate his disability. In order
to establish a prima facie case of discrimination under this theory,
appellant must show that he is an "individual with a disability"; that
he is a "qualified individual with a disability"; and that the agency
failed to reasonably accommodate his disability.
An "individual with a disability" is defined as "one who: (1) has a
physical or mental impairment which substantially limits one or more
of such person's major life activities, (2) has a record of such an
impairment, or (3) is regarded as having such an impair-ment." 29
C.F.R. �1614.203(a)(1). Major life activities are functions such as
caring for one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. �1614.203(a)(3).
A "qualified individual with a disability" is one who meets the education
and/or experience requirements for the job and can perform the essential
functions of the job with or without reasonable accommodation. 29
C.F.R. �1614.203(a)(6).
Initially, we find insufficient evidence in the record to conclude that
appellant has a mental disability which substantially limits one of his
major life activities. We also find, however, that evidence in the record
reveals that appellant has a physical impairment that substantially limits
his ability to lift, stoop, kneel, and bend repeatedly. For that reason,
we find that appellant is an "individual with a disability." Furthermore,
because it is apparent that appellant was capable of performing the
essential functions of both the T-5 position and the window clerk
position, we find that he is a "qualified individual with a disability."
Having carefully reviewed the record, we find appellant has not satisfied
the third element of the prima facie case analysis. Appellant appears
to argue that, while in the T-5 position, he was being accommodated, and
that moving him from that position into the window clerk position resulted
in him not being accommodated. We note that, during the investigation,
appellant did not explicitly allege that the window clerk position was
beyond his physical limitations and there is no indication in the record
that it is. For these reasons, it is not apparent to the Commission
that placing appellant into the window clerk position constituted a
failure to accommodate him.<0>
On appeal, appellant indicates, for the first time, that the window
clerk position does not constitute an accommodation because it requires
him to stand for eight hours. We find that this statement, particularly
at this point of the proceedings, is too vague for us to find that the
agency failed to accommodate him. This is particularly true given that,
even assuming the statement is accurate, appellant has given no indication
that he ever requested an accommodation that would not require prolonged
standing (for example, performing the duties while sitting or being able
to periodically sit down).<0>
Disparate Treatment
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. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discri-mination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
In the present case, we find it unnecessary to address whether appellant
has established a prima facie case of discrimination under the alleged
bases since there has been a full investigation and the agency articulated
a legitimate, nondiscriminatory reason for the action in question. United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, at 715
(1983). Therefore, we shall proceed to the third step of the analysis.
At this point, appellant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. See Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). We find
appellant has offered insufficient evidence to demonstrate that the
agency's articulated reason for removing him from the T-5 position is
not credible, or that the decision was discriminatorily motivated.
Accordingly, we find appellant has not established that he was
discriminated against as alleged.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against him as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 The record does not identify the duties of the T-5 position.
02 Moreover, the union agreement, which was entered into for the express
purpose of accommodating appellant, provided that he would ultimately
be placed into the window clerk position.