01a02706
08-29-2002
Eddie G. Tobias, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eddie G. Tobias, Jr. v. United States Postal Service
01A02706
08-29-02
.
Eddie G. Tobias, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02706
Agency No. 4D-200-1058-95
DECISION
Eddie G. Tobias, Jr. (hereinafter referred to as complainant) filed a
timely appeal from the January 28, 2000, final decision of the United
States Postal Service (hereinafter referred to as the agency) concerning
his complaint of unlawful employment discrimination in violation of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c),
and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the basis of disability (knee) and age (DOB 5-23-43) when he was
offered a position as a PTF clerk in October 1994.<1>
Before us is the decision of the agency following a supplemental
investigation ordered by the Commission in Tobias v. USPS, EEOC Appeal
No. 01972314 (December 18, 1998).<2> That decision found that complainant
was a person with a disability but had insufficient information to decide
whether the agency properly determined his modified job assignment and
sought evidence as to whether complainant could have been placed in the
carrier craft or in a full-time position.
The question before us is whether the agency reasonably accommodated
complainant and whether it discriminated against him based on disability
or age. Federal agencies are required to make reasonable accommodation
to the known limitations of qualified applicants or employees with
disabilities, unless the agency can demonstrate that the accommodation
would impose an undue hardship. 29 C.F.R. � 1630.2(o); see, generally,
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act, No. 915.002 (March 1, 1999).
Complainant contended that, when the agency assigned him to work as a
PTF clerk, he lost opportunities for holiday pay. He also contended
that other carriers with similar medical restrictions were accommodated
within the carrier craft. Initially we note that the PTF clerk position
was within complainant's medical restrictions and had been approved by
his physician. Agency officials concerned with his assignment stated
that no carrier positions or full-time clerk positions were available
that met complainant's requirements at the time of his assignment and
that his hourly rate was adjusted to compensate him for any loss in pay,
including loss of holiday pay. Based on these assertions and evidence in
the record, we do not find that the agency failed to provide complainant
with a reasonable accommodation.
With regard to his claim based on disparate treatment, applying the
requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and assuming that complainant established a prima facie case, we find
that the agency articulated a legitimate, nondiscriminatory reason for
not assigning complainant to a position in the carrier craft or full-time
position.<3> The agency stated that no positions were available in the
carrier craft that met complainant's medical restrictions in October 1994,
when he was reassigned; that the other employees identified by complainant
were given limited duty assignments in the carrier craft because positions
were available at the time; and that the jobs identified by complainant
within the carrier craft were either being phased out by the agency or
outside of his medical restrictions. Complainant has not demonstrated
that the agency's reasons were not true or based on discriminatory animus.
The Commission's first decision did not address complainant's claim based
on age discrimination. Nevertheless, for the reasons stated above, we
find that the agency articulated legitimate, nondiscriminatory reasons
for its action and that complainant failed to demonstrate pretext.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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
____08-29-02______________
Date
1Complainant retired effective September 2, 1997.
2In its prior decision, the agency had adopted the decision of an EEOC
Administrative Judge, finding that the agency did not discriminate
against complainant.
3Under the McDonnell Douglas paradigm, complainant must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. The burden reverts
back to the complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were a pretext or sham for discrimination.
McDonnell Douglas, supra; see Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).