01a24576
11-03-2003
Shahzad M. Ahmed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shahzad M. Ahmed v. United States Postal Service
01A24576
November 3, 2003
.
Shahzad M. Ahmed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24576
Agency No. 4A-070-0174-01
Hearing No. 170-A2-8258X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his formal 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission affirms the agency's final order.
The record reveals that complainant, employed by the agency as a City
Carrier, PS-5, at the time of the alleged discriminatory event, filed
a formal EEO complaint in which he alleged the agency discriminated
against him on the basis of disability (lumbosacral sprain/strain) when
he was terminated from his position on April 26, 2001. The complaint
was accepted for investigation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Consequently, complainant's case was
forwarded to the appropriate EEOC District Office and assigned to an AJ.
The AJ issued a decision without a hearing in which she found that
complainant had not been discriminated against as alleged. Essentially,
the AJ found that complainant failed to establish a prima facie case of
discrimination because his disability was temporary in nature, hence,
he was not an individual with a disability entitled to coverage under the
Rehabilitation Act. The agency's final order adopted the AJ's decision.
Complainant appealed without comment.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following this
order of analysis is not always necessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, we presume, without finding, that complainant is a an individual
with a disability covered by the Rehabilitation Act, and therefore, has
established a prima facie case of discrimination. In cases where we
make such a presumption, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, we find that the agency stated a legitimate, nondiscriminatory
reason for its action, that is, complainant was removed pursuant to
the agency's progressive discipline policy and because of his penchant
for being absent. The record indicates that from November 28, 2000,
to April 6, 2001, complainant missed 264.45 hours from work. The record
also indicates that complainant had been given a letter of warning, and
served suspensions of seven, ten, and fourteen days as a result of his
high absenteeism rate. In a grievance proceeding, an arbitrator found
that the removal was justified due to complainant's �horrendous record�
with the agency.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
Complainant presented no evidence that the agency's articulated reason
is a pretext designed to mask discriminatory animus toward his disability.
To the extent that complainant alleged that the agency failed
to accommodate his disability, we note that under the Commission's
regulations, an agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual
with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. �1630.9. The Commission also notes
that an employee must show a nexus between the disabling condition and
the requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22,1997).
The record shows that on November 24, 2000, complainant injured his back
while working. On December 11, 2000, complainant's physician deemed
complainant to be fit for light duty. For that reason, complainant
was placed in an assignment consistent with his medical restrictions
(i.e., no intermittent lifting and carrying of items weighing between
twenty and thirty pounds, no walking for more than three to five hours
per day, no bending or stooping, no twisting, no pushing and pulling,
and no simple grasping). According to medical documentation provided by
two of complainant's treating physicians, complainant's back impairment
had improved such that he could resume his regular duties by March 2001.
Medical information provided by a third treating physician indicates
that complainant was able to return to his regular duties by April
4, 2001. At no time was complainant required to work outside of his
medical restrictions. Further, there is no evidence that complainant's
high rate of absenteeism was related to his physical condition.
After construing the evidence to be most favorable to complainant, the
Commission finds that grant of summary judgment was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Accordingly, we affirm the agency's
final order.
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
November 3, 2003
__________________
Date