John F. Shires, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120055374_5465 (E.E.O.C. Feb. 6, 2007)

0120055374_5465

02-06-2007

John F. Shires, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John F. Shires,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 0120055374 and 01200554651

Agency Nos. 4H370022803 and 1H371000604

Hearing No. 250-2004-00130X

DECISION

Complainant appeals to the Commission from the agency's decisions dated

July 21, 2005, and July 11, 2005, concerning his two complaints, Agency

Nos. 4H370022803 and 1H371000604, respectively. Due to the related

nature of the two complaints, the Commission will consolidate the

two appeals in one decision. See 29 C.F.R. � 1614.606. In his first

complaint (Agency No. 4H370022803), dated October 4, 2003, complainant

alleged discrimination based on his disability (back and stress) when:

(1) on July 2, 2003, he was denied detail opportunities after being

informed that his position in Accounting was abolished. The record

indicates that at the conclusion of the investigation of this complaint,

complainant requested a hearing before an EEOC Administrative Judge (AJ).

On June 27, 2005, the AJ, after a hearing, issued a decision finding no

discrimination, which was implemented by the agency in its final action.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

In his second complaint (Agency No. 1H371000604), dated August 22, 2004,

complainant alleged discrimination based on his disability (back) when:

(2) on December 1, 2003, he received a notice of removal for failure to

meet the requirements of the job; and (3) on January 26, 2004, he was

informed of his non-selection for the Complaints and Inquiry Clerk.2

After completion of the investigation of this complaint, complainant

requested a hearing but later withdrew the request. The agency then

issued its decision concluding that it did not discriminate against

complainant.

The record indicates that complainant had back problems since 1980,

prior to his employment with the agency which began in 1988, as a

Letter Machine Operator. In 1989, complainant became a Data Collection

Technician. In 1993, complainant successfully bid on a position as an

Accounting Technician (AT). In April 2000, complainant and other ATs in

the Finance Department were notified by the agency that their positions

were to be abolished. Subsequently, on July 26, 2003, complainant and

other ATs were assigned as Mail Processing Clerks (MPC) in the Nashville

Processing and Distribution Center (the plant) due to the abolishment

of ATs. The record indicates that complainant never reported to his

MPC position. The record also indicates that the alleged removal action

was settled through a grievance on February 20, 2004. As a result,

complainant was paid approximately $44,000 and was actually separated

from the agency's rolls effective February 21, 2004.

Disparate Treatment

With regard to claim (1), the Plant Manager stated that he explained to

all ATs, including complainant, who were currently on detail assignments

or who were scheduled to go on a detail assignment, that they would

not be allowed to stay or go on the assignment; rather they all have

to report to the plant. Complainant admitted that the Plant Manager

clearly explained that he needed everyone back to the plant since it was

approximately 50 people short. Specifically, complainant admitted that

four ATs who had been on detail assignments had to report to the plant.

Also, there were 3 ATs who had been accepted for detail assignments but

were not allowed to go there; they reported to the plant.

The Plant Manager stated that one AT continued on her detail assignment

in the Finance Department and did not report to the plant since she was

critically needed to perform the Point of Sales work. The Plant Manager

also stated that after all ATs reported to the plant, two employees were

detailed: (1) a detail for an individual in Human Resources doing VERA;

and (2) a one month detail to another individual to Administrator support.

Complainant does not dispute the foregoing arguments. Upon review,

the Commission finds that the agency has articulated legitimate,

nondiscriminatory reasons for the alleged denial of a detail assignment.

The Commission also finds that complainant failed to show that the

agency's reasons were pretext for discrimination.

Reasonable Accommodation

In this case, complainant also claimed that he was denied a reasonable

accommodation at the agency. 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 does

not address whether complainant is an individual with a disability.

Complainant also must show that he is a "qualified" individual with

a disability within the meaning of 29 C.F.R. �1630.2(m). The record

clearly indicates that complainant could not perform the duties of his

MPC position with or without a reasonable accommodation.

The Commission notes that the discussion of "qualified" does not

end at complainant's position. The term "qualified individual with

a disability," with respect to employment, is defined as a disabled

person who, with or without a reasonable accommodation, can perform

the essential functions of the position held or desired. 29 C.F.R. �

1630.2(m). The term "position" is not limited to the position held by the

employee, but also includes positions that the employee could have held as

a result of reassignment. While the agency is not obligated to create a

new position for complainant, it must make a good faith effort to locate

a vacant funded position for which complainant was qualified. Therefore,

"[o]nly after determining that reassignment to a vacant position was not

possible or would result in an undue hardship, would the Rehabilitation

Act permit the agency to conclude that [a complainant] is not a qualified

individual with a disability." Kitaura v. United States Postal Service,

EEOC Petition No. 03980089 (March 11, 1999).

A. Detail Assignments

With regard to the alleged detail assignment described in claim (1),

complainant claimed that prior to his being assigned to the MPC position,

he was denied the detail assignment in the Consumer Affairs, Marketing

Department. The agency, however, stated that this detail assignment was

not a vacant funded position and was not a critical, needed position.

Complainant does not dispute this argument.

Complainant also claimed that he could have been on a detail assignment

in Human Resources. The agency stated, however, that it was a temporary

position and not permanent. This position also required lifting over

15 pounds, bending, squatting, kneeling, and stooping which complainant

could not do. Complainant specifically indicated that he was limited to

15 pounds lifting, 15 minutes standing or walking, no bending or stooping,

and 30 pounds pushing or pulling.

Complainant further claimed that there were two employees in light duty

in the plant. The agency, however, indicated that the two employees

were already performing light duty in the plant due to their medical

restrictions, and it was not required to wrongfully take work from them

and give to complainant. The agency stated that there was no additional

light duty work available for complainant in the plant. Complainant does

not dispute the agency's foregoing arguments. Therefore, we find that

complainant was not denied a reasonable accommodation for the detail

assignments.

b. General Clerk Position

Complainant claimed that he applied for the General Clerk position

in Operations Support, which was a vacant funded position, but he

was not selected, thereby denying him a reasonable accommodation.

The agency stated, however, that this position was a senior bidder job

and complainant admitted that he did not have enough seniority.

The United States Supreme Court, in U.S. Airways Inc. v. Barnett, 535

U.S. 391 (April 29, 2002), held that normally, the employers' seniority

system will prevail over the disabled employee's right to reassignment

unless "special circumstances" are shown to exist. The Court further

explained that special circumstances might exist where an employee

shows that the system already contains exceptions such that further

exceptions are unlikely to make a difference. Id. at 1525. In this case,

complainant has not presented any evidence of special circumstances for

the General Clerk position, described above. See also EEOC Enforcement

Guidance on Reasonable Accommodation and Undue Hardship Under the

Americans with Disabilities Act, Number 915.002 (October 17, 2002)

at 31. Therefore, we find that complainant was not denied a reasonable

accommodation for reassignment into the General Clerk position.

c. Contract Technician Position and Claims and Inquiry Clerk Position

Complainant also claimed that in July or August, 2003, he applied but

was not selected for the Contract Technician position in Administrative

Services/Support section. Furthermore, in November or December 2003,

complainant also applied for the Complaints and Inquiry Clerk position

in the Marketing Department, described in claim (3), but on January 26,

2004, he received a notice of non-selection. The record indicates that

both positions were vacant funded positions.

The agency stated that these selections were "best qualified" selections.

Specifically, the agency stated that the agency had a long standing

established policy and practice of selecting the best qualified candidate

for best qualified selection positions. In addition, the Collective

Bargaining Agreement mandated that best qualified positions be awarded

to the best qualified successful bidder (applicant). The agency also

indicated that it would be unreasonable to force them to abandon its

policy of hiring the best qualified applicant in order to accommodate a

disabled employee. The agency further indicated that such a requirement

would cause substantial undue hardship on their ability to effectively

manage their operations as well create undue financial hardships.

The Commission disagrees with the agency's foregoing arguments.

Specifically, EEOC Enforcement Guidance on Reasonable Accommodation and

Undue Hardship Under an Americans with Disabilities Act, Number 915.002

(October 17, 2002) provides that the employee does not need to be the

best qualified individual for the position in order to obtain it as a

reassignment. The Guidance also provides that the ADA specifically lists

"reassignment to a vacant position" as a form of reasonable accommodation.

This type of reasonable accommodation must be provided to an employee who,

because of a disability, can no longer perform the essential functions of

his/her current position, with or without reasonable accommodation, unless

the employer can show that it would be an undue hardship. An employee

must be "qualified" for the new position. An employee is "qualified"

for a position if he: (1) satisfies the requisite skill, experience,

education, and other job-related requirements of the position, and (2)

can perform the essential functions of the new position, with or without

reasonable accommodation.

After a thorough review of the record, including the hearing transcripts

and the investigative reports of the complaints, the Commission,

nevertheless, finds that complainant failed to show that he could perform

the essential functions of the Contract Technician and Claims and Inquiry

Clerk positions. With regard to the Contract Technician position, the

agency stated that it required lifting more than 15 pounds, bending or

stooping, and pulling or pushing of items. Specifically, it required

picking up boxes such as copy papers (print materials that would come

back from printers) and boxing up the files end of year in order to

take them to the warehouse. With regard to the Complaint and Inquiry

Clerk position, it required lifting over 15 pounds and required being

responsible for the mail run which occurred 3 times a day, from 10 to 20

minutes. As previously stated, complainant specifically indicated that

he was limited to 15 pounds lifting, 15 minutes standing or walking, no

bending or stooping, and 30 pounds pushing or pulling. Complainant failed

to provide any evidence that he could perform the essential functions

of the above positions with or without reasonable accommodation.

c. Removal

With regarding claim (2), the agency stated that complainant was

removed from his MPC position since he could not perform the essential

functions of that position with or without reasonable accommodation.

Complainant admitted that he could not perform the essential functions

of the MPC position. In fact, he never reported to the subject position.

However, he claimed that he was qualified for the above identified vacant

funded positions and he should have been placed in them. However,

as we addressed above, complainant failed to show that he could perform

the essential functions of those positions with or without reasonable

accommodation.

In addition, we note that the record indicates that on October 7,

2003, the agency Reasonable Accommodation Committee (RAC) reviewed

complainant's limitations and determined that there was no reasonable

accommodation available to enable him to perform the essential functions

of his present MPC position. The RAC also determined that there was

no vacant funded position that complainant might be assigned consistent

with his limitations.

Based on foregoing, the Commission finds that complainant was not

discriminated against with regard to the alleged agency's actions,

and he was not denied a reasonable accommodation. After a review of

the record in its entirety, including consideration of all statements

submitted on appeal, the agency's final decisions are 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

February 6, 2007

__________________

Date

1 Due to a new data system, your cases have been redesignated with the

above referenced appeal numbers.

2 It appears that Complaints and Inquiry Clerk is also referred to as

Claims and Inquiry Clerk.

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0120055374

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036