01982671
07-13-2001
Theodore S. Rhodes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.
Theodore S. Rhodes v. United States Postal Service
01982671
July 13, 2001
.
Theodore S. Rhodes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Mid-Atlantic Area),
Agency.
Appeal No. 01982671
Agency No. 4D-280-1192-95
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of disability (back injury) when on June 5, 1995,
he bid on a job and on July 10, 1995, he received a letter from the
Postmaster stating that his bid was disallowed and that the job was
given to a junior employee.
The record reveals that during the relevant time, complainant was
employed as a part-time Flexible Distribution Clerk, with restrictions,
at the agency's Jacksonville, North Carolina facility. Believing he
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on July 26, 1995. 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 requested that the agency
issue a final decision.
The undisputed facts are as follows. Complainant accepted a job offer
for a distribution clerk position with modified duties in 1982. The job
offer stated as follows:
The limited duty Part-Time Flexible Distribution Clerk position is
tailored to meet your personal physical limitations. This job does not
qualify as a position which requires assignments through competitive
seniority bidding. All positions requiring assignment by seniority
contain duties with different job descriptions which are contrary and
contra convalescent to your physical condition. Therefore, although
you gain in seniority, you cannot bid on other assignments unless your
physical condition improves to permit your reassignment.
Complainant's modified clerk position contained restrictions
including, no lifting over 30 pounds. Complainant placed a bid for a
Distribution/Mark-up Clerk position in June, 1995 at the Camp LeJeune
Station of the Jacksonville, North Carolina Post Office. Complainant's
current work schedule was 0500-1400 with Sunday/Tuesday off, while the
vacant position was 0430-1300 with Thursday/Sunday off. The successful
bidder of the vacant position would be the only employee on duty from
0500-0745, whereas complainant was currently assigned to the main office
and never worked alone.
On June 13, 1995, the Postmaster wrote to complainant requesting that he
provide medical certification indicating that he would be able to fully
perform the duties of the bid position, as required under a Memorandum
of Understanding between management and the union. Complainant was
given a deadline of June 27, 1995 to provide the medical certification.
The complainant failed to respond. Consequently, on July 7, 1995,
the Postmaster notified complainant that his failure to provide medical
certification had resulted in his bid being disallowed.
In its FAD, the agency concluded that complainant failed to prove that
the Postmaster's articulated legitimate, non-discriminatory reason for
disallowing complainant's bid was pretext for disability discrimination.
In addition, the agency concluded that complainant failed to present
any evidence that any agency official harbored discriminatory animus
towards members of complainant's protected group.
Complainant raises no contentions on appeal.
For the purposes of this decision, we will assume, without deciding,
that complainant was an individual with a disability as defined under
the Rehabilitation Act.
The agency in this matter has engaged in a disability-related inquiry of
complainant, an employee who was non-competitively entitled to a vacant
position based upon seniority rights. Under these circumstances, in
order to inquire about complainant's disability and require a medical
certification, the agency must show that the disability-related
inquiry was job related and consistent with business necessity.
See Enforcement Guidance: Disability - Related Inquires and Medical
Examinations of Employees under the Americans with Disabilities Act
(ADA), No. 915.002, pp. 6-8 (July 27, 2000). The preponderance of the
record herein establishes that the Postmaster had a reasonable belief,
based upon objective evidence that complainant's ability to perform
essential job functions of the vacant position would be impaired by his
medical condition. Since complainant was already in a modified clerk
position, the Postmaster was aware that complainant had a 30-pound
lifting restriction, at least in 1982 when complainant was originally
placed in his modified clerk position.<1> The undisputed record shows
that one of the requirements of the vacant position was to lift and
carry packages weighing up to 70 pounds. In addition, the vacant
position would require complaint to be alone for almost three hours
each day. Given these factors, the Postmaster had a reasonable belief
that complainant's ability to perform the essential functions of the
vacant position would be impaired or that he would pose a direct threat
due to his medical condition.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Prewitt v. United States Postal Service, 662
F.2d 292, 310 (5th Cir. 1981), the Commission agrees with the agency
that complainant failed to show that the articulated legitimate,
non-discriminatory reason for its employment decision was pretext for
disability discrimination. Since we find that the Postmaster's request
for medical certification was reasonable and lawful and since there is no
evidence of pretext or discriminatory animus, we find that complainant
has failed to prove, by a preponderance of the evidence, that he was
discriminated as alleged.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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 13, 2001
__________________
Date
1 There is no indication in the record that complainant ever updated
the agency as to the current status of his medical restrictions over
the years.