0120112995
07-11-2012
Anthony Sterling, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Anthony Sterling,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120112995
Hearing No. 461-2010-00118X
Agency No. 1G701002310
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 21, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Flat Sorting Machine Operator at the Agency's Processing and Distribution Center in Lafayette, Louisiana. On April 13, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of disability (Neck/Shoulder) when: On December 14, 2009 and January 15, 2010, he was denied the opportunity to work the holidays.
Complainant revealed that he had filed a claim for a neck and shoulder injury in 2003 and had neck surgery in 2004. Complainant stated that he now had tendonitis of the right shoulder and a diagnosis of cervical radiculopathy. The evidence in the record indicates the following restrictions with Complainant's non-injured arm as of November 13, 2009: Intermittent lifting/carrying up to 15 pounds and no climbing, kneeling, bending/stooping, twisting, and/or reaching above shoulder. Complainant asserted that as long as he stayed within his restrictions, he did okay and "stressed" that he was not alleging that he had been denied an accommodation. He acknowledged that he had not gone before the District Reasonable Accommodation Committee [DRAC] but just felt that others had been treated better than he. Complainant noted that he has had a limited duty position since July 2004.
Complainant stated that his pay location was 121 and his work area was 044, manual distribution. He reported for duty at 23:50 with Saturday night and Sunday night off [Tour l's Sunday and Monday]. Complainant maintained that he was denied the opportunity to work the Christmas Day Holiday, Thursday night, December 24, 2009, [Tour l's Friday, December 25, 2009] and the Martin Luther King [MLK] Holiday, Sunday night, January 17, 2010 [Tour l's Monday, January 18, 2010]. It is noted that Complainant had Sunday and Monday as non-scheduled days, therefore, Friday night, January 15, 2010, [Tour l's Saturday, January 16, 2010] was Complainant's designated MLK Holiday. The evidence in the record indicates that Complainant received Holiday Leave for both days. Complainant contended that management denied him the opportunity to work the 2009 Christmas Holiday and denied him the opportunity to work the 2010 MLK Holiday. Complainant alleged that he was the only employee denied work on these two holidays. Complainant was informed that it would not be fair to have other employees pull the priority sacks for him; therefore, he could not work because he was on limited duty. Complainant averred that he had worked the MLK Holiday, President's Day Holiday, Memorial Day Holiday, July 4th Holiday, Labor Day Holiday, Columbus Day Holiday, Veteran's Day Holiday, and the Thanksgiving Day Holiday in 2009. The evidence in the record indicates that he worked all these holidays except for the Columbus Day Holiday where he received Holiday Leave. There is no evidence regarding the work performed by Complainant on these past holidays. Complainant contended that he was capable of performing the required holiday work on the Priority belt which he had worked before at the beginning and/or end of his tour. Complainant admitted he could not pull the heavy [Priority] sacks but maintained that it was a team effort and he was sure the other employees would not have been offended if he could not pull the sacks. Complainant was advised that he was the only limited duty clerk on Tour 1 and was denied the opportunity to work the 2009 Christmas Day Holiday and the 2010 MLK Holiday, even though he had signed the holiday [volunteer] work sheet. Complainant noted that the Overtime Desired List [ODL] and seniority were not factors in scheduling employees to work a holiday and that he had filed grievances.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Although Complainant initially requested a hearing, on March 17, 2011, the AJ remanded the complaint to the Agency for the issuance of a final agency decision due to Complainant's withdrawal of his request for a hearing.
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for its actions. While Complainant asserted that he is not claiming that the Agency failed to reasonably accommodate him, the Agency initially noted that Complainant is actually presenting a claim of denied reasonable accommodation in regards to the limited duty position he was working. Specifically, Complainant claimed that he was denied work on the two holidays in question, even though he could have performed the job of working on the priority flat belt with the accommodation of having other employees lift and change the sacks when they became full. As such, the issue of accommodation must be addressed in regards to the work Complainant was alleging he could perform. Assuming that Complainant had established that he was a person with a disability, the next element of a prima facie case based on a failure to accommodate is to establish that he is "otherwise qualified." The regulations define a "qualified individual with a disability" as a person who satisfies the requisite skill, experience, educational, and other job-related requirements of the position the individual holds or desires and who, with or without reasonable accommodation, can perform the essential functions of that position without endangering the health and safety of the individual or others. The essential functions of a position are the fundamental job duties of the position Complainant holds or desires considering whether the position exists to perform the function, whether there are a limited number of individuals available to perform the function, or whether the function is highly specialized and the incumbent was hired for his or her expertise. Complainant has the burden of proving that he is a "qualified individual with a disability."
In viewing the work in question, Complainant alleged he could perform the work available. However, management credibly testified that Complainant could not perform this work. Specifically, the Acting Manager of Distribution Operations (AMDO) stated that in regards to holiday scheduling, management determines what specific tasks they need to accomplish and then they schedule according to what their needs are. He maintained that not everyone who volunteers is scheduled to work. The AMDO explained that there is no mail delivery on holidays, and operations are substantially reduced on designated holidays. He maintained that with reference to holidays on Tour 1, he only scheduled the work that was necessary in order to prevent an overburdening of operations on the work day following the holiday. He asserted that as a result of a work related condition accepted by OWCP, Complainant had physical restrictions, which at the time of the holidays in question, included a 15 pound lifting restrictions. The AMDO referenced Complainant's modified assignment in effect during the December 2009 - January 2010 time period, which states: The physical requirements of this modified assignment are: Case letters & Flats Manual 4 to 6 hrs; Case Box Section 4 to 6 hrs; Nixie and Business reply Mail 2 to 4 hours, and; Sit or Stand extending arms to insert mail into slots. He stated that with the limited staffing for Christmas holiday, he needed employees who could work the DBCS machines and other work that was outside of the Complainant's restrictions. The AMDO asserted that there was not enough sedentary, manual work within Complainant's restrictions that was necessary to warrant working him for a full day on the holidays. He maintained that the work performed by the employees who were scheduled included work within their bid positions that included tasks such as operating machinery and lifting heavy sacks and tubs. As far as Complainant working prior holidays, the AMDO noted that someone else had been in charge and had made the schedule which allowed everyone to work regardless of their restrictions. He acknowledged that Complainant was the only Tour 1 clerk not selected to work these holidays because of his limitations whereby he could not perform all of the duties required at the Priority Mail belt; and his limited duty assignment stated manual functions only. The AMDO noted that it was just Complainant's opinion that no other employee would be offended if that affected employee had to pull down the Priority sacks for Complainant. The AMDO reiterated that the schedule was based on efficiency and productivity. He noted that it would not be efficient to schedule Complainant who was right handed and could only use his left hand with restrictions.
The Agency noted that while Complainant had attested that he had performed the priority belt job previously at the beginning and/or at the end of his tour, he makes no claims that he has been able to perform this job for a full 8 hours. This job consists of two functions, throwing parcels into sacks/containers and emptying the sacks/containers once they are full. With his restrictions of the use of only one arm and not being able to empty any of the full equipment, it is not reasonable to believe that Complainant could have performed 50% of the duties of this position. The accommodation of having others perform the tasks is not an accommodation that enables Complainant to perform the essential functions of the position; rather, it simply eliminates the functions. As such, the Agency concluded that any claim related to a failure to accommodate does not succeed in that Complainant failed to establish that he was "otherwise qualified" for the work in question.
The Agency finally noted that in accordance with the applicable provisions of Article 11 of the National Agreement between the United States Postal Service and the American Postal Workers Union, factors to be considered when scheduling light/limited duty employees who desire to work a holiday are the medical restrictions imposed by the employee's practitioner and whether the employee could be used to do the work scheduled to be completed on the holiday.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Under the Commission's regulations, an agency is required to make reasonable accommodations for the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. (( 1630.2(o) and (p). An "individual with a disability" is one who: 1) has a physical or mental impairment that substantially limits or restricts one or more of his or her major life activities; 2) has a record of such impairment; or (3) is regarded as having the impairment. 29 C.F.R. ( 1630.2(g). Major life activities include functions such as self care, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. ( 1630.2(i).
To establish a case of discrimination based on a failure to accommodate a disability, complainant must show: (1) that he is an "individual with a disability" as defined in 29 C.F.R. ( 1630.2(g); and (2) that he is a "qualified person with a disability," in that he is qualified for and can perform the essential elements of the position at issue with or without reasonable accommodation, as specified in 29 C.F.R. ( 1630.2(m). Cansino v. Department of the Army, EEOC Request No. 05960674 (Aug. 27, 1998) (citing Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)). In addition, complainant must make at least a facial showing that his disability can be accommodated. Bradley v. United States Postal Services, EEOC Appeal No. 01962747 (Oct. 22, 1998) (citing Treadwell v. Alexander, 707 F.2d 453, 477-78 (11th Cir. 1983)).
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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 v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); 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); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant proffers no statement on appeal. Even assuming Complainant is a person with a disability, Complainant has not produced evidence to show that the Agency's explanations are a pretext for discrimination. Further, the record shows that Complainant remained unable to perform the essential functions of his bid position with or without an accommodation.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 11, 2012
__________________
Date
2
0120112995
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112995