0120103625
07-30-2012
Jorge L. Lebron, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Jorge L. Lebron,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120103625
Agency No. 4G-780-0079-10
DECISION
Complainant appeals to the Commission from the Agency's final decision dated August 5, 2010, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In his complaint, dated February 22, 2010, Complainant, an applicant for employment at the Agency, alleged discrimination based on disability (back injury) when he was notified by letter dated January 26, 2010, that he was found medically unsuitable for employment with the Agency. After completion of the investigation of the complaint, Complainant did not request a hearing. Thus, the Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incident. The record indicates that on October 31, 2009, Complainant applied for the position of City Carrier (Transitional Employee) at the Copperas Cove Post Office in Copperas Cove, Texas. Complainant was then given an offer of employment, conditioned upon passing a pre-employment physical examination. Complainant claimed that he was discriminated against by an identified Occupational Health Nurse (OHN), Occupational Health Service, when he was notified by letter dated January 26, 2010, that he was found medically unsuitable for employment with the Agency.
The OHN stated that on December 16, 2009, she initiated Complainant's Electronic Medical Assessment Process (eMap). The OHN stated that her medical unit conducted eMAP for all new hires once they had a conditional job offer by the Agency. On December 17, 2009, stated the OHN, she interviewed Complainant telephonically since his eMAP detected eight inconsistent responses in his medical history. The OHN then asked Complainant to submit his medical documentation. Thereafter, Complainant sent, via fax and mail, medical documentation but failed to send in his Veterans Administration rating decision as requested. The OHN indicated that the medical documentation Complainant submitted revealed more medical conditions than he had originally disclosed. Thus, on December 31, 2009, the OHN informed Complainant that since his medical documents indicated that he was seeing a chiropractor and receiving physical therapy, they needed additional medical documentation. Complainant, however, did not provide this additional medical documentation. The OHN stated that her office sent the automatic generated Exception Notice, dated December 31, 2009, to Agency Human Resource office indicating that Complainant failed to provide the requested medical information. Thereafter, on January 6, 2010, upon his request, Complainant talked to the OHN's supervisor who informed him that since his military medical history questionnaire he submitted indicated that he received counseling for two months in 2005, and one month in 2009, they also needed the medical progress and treatment notes of his mental condition. Complainant failed to submit those. Despite Complainant's claim, the OHN indicated that she did not threaten or call him several times asking him for the same records or asking him for Form 2485-B or tell him that she was her own supervisor.
A Supervisor Customer Support, EAS-17, a recruiter during the relevant time period, stated that after receiving the foregoing Exception Notice, she rejected Complainant from the hiring list for the position of City Carrier at issue on January 26, 2010, and a System Generated Email dated April 21, 2010, was sent to him. Specifically, the supervisor stated that Complainant was rejected because the medical unit could not complete the medical assessment findings for him to be hired. The supervisor noted Complainant also applied a number of other positions at the Agency and he was on the hiring lists. He also noted that Complainant was denied some positions and he declined some positions that were offered to him hoping to get a position closer to his home and hoping to get a Rural Carrier Associate position.
Upon review, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. In this decision, we do not decide whether Complainant was a qualified individual with a disability within the meaning of the Rehabilitation Act. We also note that Complainant has not claimed that he was denied a reasonable accommodation. Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
7/30/12
__________________
Date
2
0120103625
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103625