Shahzad M. Ahmed, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 3, 2003
01a24576 (E.E.O.C. Nov. 3, 2003)

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