01a60319
04-11-2006
Michael C. Magro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Michael C. Magro v. United States Postal Service
01A60319
April 11, 2006
.
Michael C. Magro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A60319
Agency No. 4H-335-0198-04
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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, Level 6, at the agency's Main
Office located in Tampa, Florida. Complainant sought EEO counseling
and subsequently filed a formal complaint on October 14, 2004, alleging
that he was discriminated against on the bases of disability (impairment:
right wrist injury)<0> and age (D.O.B. 10/31/45) when, on September 19,
2004, he received a letter denying his request to return to the carrier
craft.<0>
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
initially requested a hearing, but subsequently withdrew his request,
and asked that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of age discrimination because he did not identify
similarly situated individuals, not in his protected class, who were
treated more favorably. The FAD found that complainant was an individual
with a disability within the meaning of the Rehabilitation Act, noting
that his wrist injury substantially limited his major life activity of
performing repetitive motions. The FAD further found that management
provided a legitimate, nondiscriminatory reason for its action; namely,
that complainant was not returned to the Carrier Craft because his
restrictions would not allow him to perform the essential functions
of the Carrier position. Additionally, the FAD found that the manager
stated that other former Carriers like complainant were returned to the
Carrier Craft once there was a change in their restrictions, or based
on a DRT ruling, an arbitration ruling, or an EEO ruling.<0> The FAD
concluded with a finding of no discrimination.
On appeal, complainant argues as follows: due to automation and the
installation of automated equipment, excessing in the Clerk Craft
was inevitable. The agency conspired with the Union President to
allow Modified Carriers (such as complainant) into the Clerk Craft as
Modified Clerks. By so doing, these Modified Clerks would be placed at
the bottom of the seniority roster, which would, by contractual language,
render them the first employees excessed. Complainant contends that he
received a letter stating that he would be excessed. The agency later
determined that the automated equipment was not satisfactory, and decided
that there would be no excessing. Subsequently, the agency determined
that complainant would be placed back into his Carrier position,
which shows that there was work for him after all in the Carrier Craft.
Accordingly, complainant contends that the agency discriminated against
him. In its Reply Brief, the agency contends that complainant has not
proven discrimination, and notes that complainant was ultimately placed
back in the Carrier Craft because his medical restrictions changed.
The agency requests that we affirm its FAD. As an initial matter we
note that, as this is an appeal from a FAD 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).
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to
hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision." Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). "That is, [complainant's]
age must have actually played a role in the employer's decision-making
process and had a determinative influence on the outcome." Id.
In disparate treatment cases such as the instant appeal, where there
is an absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see
also Reeves, 530 U.S. at 142 (applying McDonnell Douglas analysis
to ADEA claim). He must generally establish a prima facie case by
demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves, 530 U.S. at
120; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Assuming arguendo that complainant is an individual with a disability,
and that he otherwise established a prima facie case of discrimination
on the alleged bases, we turn to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. The Manager of Customer
Service Operations stated that in 2003 he had provided complainant with
a job in the Clerk Craft as a reasonable accommodation for complainant's
medical restriction, and that when complainant requested to return to the
Carrier Craft he could not allow it because complainant could not perform
the duties of a Carrier. We note that complainant does not dispute that
he cannot perform all of the duties of a Carrier. Complainant in fact
states that his medical condition prevents him from casing or carrying
residential mail. Additionally, complainant states that the last time
his doctor changed his restrictions so that he could perform more of
the work of a Carrier, this resulted in three (3) additional surgeries.
See Report of Investigation (ROI), affidavit A, at 3.
In an attempt to establish pretext, complainant contends that by assigning
him to the Clerk Craft, the agency was intentionally trying to force him
into retirement or excess him. Complainant also attempts to establish
unlawful disparate treatment by arguing that others who were forced
into the Clerk Craft were permitted to return to the Carrier Craft.
However, the record evidence indicates that those individuals were within
complainant's protected age group, and may have all also had disabilities
as well, since they appear to have been placed into the Clerk Craft
due to medical restrictions. See ROI, Investigative Summary, at 8.
Complainant does not offer any evidence to discredit the assertion
that his comparators were returned to the Carrier Craft based on a
change in their restrictions, a DRT ruling, an arbitration ruling, or
an EEO ruling. Additionally, complainant asserts that the fact that
he was ultimately returned to the Carrier Craft proves that there was
work for him all along. However, he has not discredited management's
statement that his restrictions changed, and that this was why he was
ultimately permitted to return to the Carrier Craft. After a careful
review of the record, we are not persuaded, by a preponderance of the
evidence, that the agency management failed to permit complainant to
return to the Carrier Craft because of age or disability-based animus.
Accordingly, we AFFIRM the FAD.
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
April 11, 2006
__________________
Date
0 1Complainant asserts that he cannot perform repetitive motions due to
his wrist.
0 2The record indicates that complainant had previously been employed by
the agency as a Letter Carrier. He was subsequently transferred into the
Clerk Craft, and the reason given was his medical inability to perform
the core duties of a Letter Carrier. On July 16, 2004, complainant
sent a letter to the Postmaster requesting that he be placed back into
the Carrier Craft. On July 20, 2004, complainant sent a letter to his
Manager, expressing the same request. Specifically, complainant appears
to be requesting assignment to a �Modified� Letter Carrier position, in
which he would deliver express mail and work as Lobby Director as needed.
See ROI, Affidavit A, at 2.
0 3The FAD additionally noted that on February 11, 2005, complainant was
sent a letter from the Injury Compensation Specialist notifying him that
based on a review of his OWCP case file, it had been decided that he would
be placed back in the City Carrier Craft, effective February 19, 2005.