01A23547
07-18-2003
Duane D. Telep, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Duane D. Telep v. United States Postal Service
01A23547
July 18, 2003
.
Duane D. Telep,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23547
Agency No. 1-D-234-1016-94
Hearing No. 120-A0-3083X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and 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 affirm
the agency's final order.
The record reveals that complainant, a Mailhandler, PS-4 at the agency's
Hampton Roads General Mail Facility in Norfolk, Virginia facility, filed
a formal EEO complaint on February 1, 1994, alleging that the agency had
discriminated against him on the bases of race (Caucasian), sex (male),
religion (Catholic), and disability (Degenerative Disc Disease) when
on December 3, 1993, complainant was denied access to handicap parking
spaces in the parking lot closest to the agency's building.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish his prima
facie cases of discrimination based on sex, race, and religion.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees outside of complainant's protected classes,
i.e. employees who were permitted to park in handicap parking spots in
the east lot, were treated differently under similar circumstances.
As to complainant's claim that managers and supervisors were given
parking spots in the east lot, the AJ noted that they are not similarly
situated to complainant, a craft employee. Further, the AJ determined
that complainant did not proffer any facts or circumstances from which an
inference of discrimination could be drawn. Accordingly, the AJ concluded
that complainant did not show that he was discriminated against based
on his race, sex, or religion.
The AJ then turned to complainant's claim of disability-based
discrimination. Complainant's condition prohibits him from bending,
lifting and carrying over twenty pounds, standing for longer than
two hours, and climbing ladders. The AJ found that complainant did
not show that he was substantially limited in a major life activity.
The AJ noted that complainant did not establish that he had a record
of a disability or that the agency regarded him as an individual with a
disability. Accordingly, the AJ determined that he failed to establish
that he is covered under the Rehabilitation Act.
The AJ continued his analysis and noted that complainant did not
provide any information to show that his limitations necessitated a
closer parking spot as those similarly situated employees who were
assigned to the preferred handicap parking spaces. Therefore, the
AJ determined that complainant did not show that he was subjected to
disparate treatment under the Rehabilitation Act. Further, since the AJ
found that complainant is not covered under the Rehabilitation Act, he
stated that the agency had no affirmative duty under the Rehabilitation
Act to provide complainant with a reasonable accommodation.
The agency's final order implemented the AJ's decision. This appeal
followed. Complainant argues that the agency never provided him with a
reason for the denial of the parking space. Complainant also contends
that the AJ erred procedurally in delaying the hearing and granting an
untimely motion for summary judgment. Therefore, he requests that a
hearing be held in this matter.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. See 29 C.F.R. � 1614.109(g)(3). After a careful review of the
record, the Commission finds that the AJ's issuance of his decision
without a hearing was appropriate as no genuine dispute of material
fact exists. Further, although there was an unexplained delay in the
scheduling of the hearing, we note that there was no need for the hearing
since the case was ripe for summary judgment.
We find that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed establish that the agency discriminated against
him as alleged.
As to complainant's claim of discrimination on the bases of sex, race,
and religion, we find that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
As to his claim that the agency denied him a reasonable accommodation in
violation of the Rehabilitation Act, we assume for purposes of analysis
that he is an individual with a disability. The record indicates that
complainant was not given access to handicap parking spaces closest to
the agency's building. Instead, complainant was provided with handicap
parking in another parking lot a block from the building. We note
that there is no indication in the record or on appeal that complainant
had problems walking from the regular handicap parking. The Commission
finds that the action taken by the agency was an effective accommodation.
At issue in this case is complainant's dissatisfaction with the denial
of access to the lot next to the building.
It is the Commission's position that if more than one accommodation is
effective, "the preference of the individual with a disability should
be given primary consideration; however, the employer providing the
accommodation has the ultimate discretion to choose between effective
accommodations." 29 C.F.R. � 1630.9; see also EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915.002, Question 9 (revised October 17, 2002);
Polen v. Department of Defense, EEOC Appeal No. 01970984 (January
16, 2001). Thus, while complainant may be entitled to an effective
reasonable accommodation under the Rehabilitation Act, he is not entitled
to the accommodation of his choice. Complainant does not argue that
the parking spot is not effective. Therefore, we find that the agency
provided complainant with a reasonable accommodation even though it was
not the exact accommodation he sought.
Accordingly, we affirm the agency's final order implementing the AJ's
decision without a hearing.
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
July 18, 2003
__________________
Date
1 Complainant sought privileges to park in one of the handicap parking
spaces in the parking lot closest to the agency's building. His request
was denied and complainant had to park in handicap parking spaces in
another lot further from the building.