01984610
07-19-2001
Michael Wade, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Wade v. United States Postal Service
01984610
July 19, 2001
.
Michael Wade,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984610
Agency No. 4H-350-1171-96
DECISION
On May 12, 1998, Michael Wade (complainant) filed a timely appeal from
the April 14, 1998, final action of the United States Postal Service
concerning a complaint of unlawful employment discrimination in violation
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
Complainant alleged discrimination based on disability (injury in scuba
diving accident) when he was not assigned 40 hours of light duty per week.
The agency, although it found that complainant was not a person with a
disability, explained that complainant was afforded as much work as was
available at the facility within his medical restrictions.
Complainant has alleged disparate treatment based on disability. For
purposes of further analysis, we assume without finding that complainant
is a qualified person with a disability. 29 C.F.R. �1630.2(m)<1> We
now consider complainant's claim of disparate treatment.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th
Cir. 1981). A 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). In response, the agency offers rebuttal to
complainant's inference of discrimination by articulating a legitimate,
nondiscriminatory reason(s) for its action(s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); see U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Once the agency has stated the reasons for its action, the burden
returns to the complainant, who must persuade the fact finder by a
preponderance of the evidence that the reason offered by the agency
was not the true reason for its actions but rather were a pretext for
discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Where the agency has articulated an explanation for its actions, we may
proceed to the third step of the McDonnell Douglas analysis and consider
whether the complainant has shown by a preponderance of the evidence that
the agency's actions were not true or motivated by discrimination. U.S.
Postal Service Board of Governors v. Aikens, 460 U.S. at 713-14.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the agency explained that
it provided complainant as much work as possible within his medical
restrictions. The burden now returns to complainant to demonstrate that
the agency's reasons were not its true reasons for its action but were
a pretext for discrimination, e.g., the agency's reasons were based on
prohibited considerations regarding his disability. Complainant has
not presented any evidence to demonstrate that the agency's explanations
were not true or based on illegal considerations or discriminatory animus.
CONCLUSION
Accordingly, the agency's final action was proper and is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA).