0120101580
03-18-2011
John G. Shomberg, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
John G. Shomberg,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101580
Agency No. 1H-361-0009-09
DECISION
On February 17, 2010, Complainant filed an appeal from the January
14, 2010 final Agency decision (FAD) 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. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing Clerk at the Agency’s Processing and Distribution
Center in Montgomery, Alabama. On June 16, 2009, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the
basis of disability and in reprisal for prior protected EEO activity
when management gave him instructions to perform duties that were in
violation of his medical restrictions wherein his permanent light duty
was misclassified.1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with Complainant’s request, the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).
Initially, the FAD determined that Complainant had not established a
prima facie case of discrimination on the alleged bases. The FAD then
assumed arguendo that Complainant had established a prima facie case of
discrimination and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Plant
Manager (PM) stated that he approved Complainant's request for light duty
with the restrictions Complainant provided on March 20, 2009. Further,
PM affirmed that he neither instructed Complainant to perform any duties
outside his restrictions, nor instructed anyone else to have Complainant
perform duties that violated his restrictions. PM added that there was
no reason for Complainant to have stood while working in his section
because there were chairs in that section for employees to utilize while
working in that operation. Further, the FAD found that Complainant was
moved out of his regular assignment because the flat-sorter machine was
dismantled which required changes that affected all employees who worked
in that operation.
Next, the FAD found that Complainant failed to establish that the
Agency’s reasons were pretext. Specifically, Complainant presented
no evidence establishing a nexus between his prior protected activity
and the Agency’s actions. Further, the FAD found that Complainant’s
unsupported conclusions that Agency management discriminated against him
by instructing him to work outside his regulations were insufficient to
demonstrate pretext. Accordingly, the FAD found that Complainant failed
to prove that the Agency subjected him to discrimination or retaliation
as alleged. Complainant submitted no timely arguments on appeal.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-15 (Nov. 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”).
Dismissed Claims
Complainant contends that the Agency failed to process his informal
complaint filed in February 2006, regarding allegations related to
a 2001 termination, a 2004 salary reduction, and denial of overtime
opportunities. Complainant alleges that the EEO Counselor directed him
to wait until his appeals with the Office of Workers’ Compensation
Programs and Employee Compensation Appeals Board were exhausted.
The record reveals, however, that Complainant withdrew at least part of
his complaint on March 2, 2006. ROI, Ex. 2. Further, the Commission,
has consistently held that a complainant must act with due diligence
in the pursuit of his claim or the doctrine of laches may apply. See
O’Dell v. Dep’t of Health & Human Serv., EEOC Request No. 05901130
(Dec. 27, 1990). The doctrine of laches is an equitable remedy under
which an individual's failure to pursue diligently his course of action
could bar his claim. Here, Complainant has allowed over three years to
pass before inquiring about the status of his informal complaint. Thus,
the doctrine of laches applies, and Complainant may not now pursue his
March 2006 informal complaint. Therefore, the Commission finds that
the Agency properly dismissed these matters as untimely.
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the Agency denies that its decisions were motivated by Complainant's
disability and there is no direct evidence of discrimination, the
Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C.Cir. 1999). Under this analysis, in order to establish a prima facie
case, Complainant must demonstrate that: (1) she is an “individual
with a disability”; (2) she is “qualified” for the position held
or desired; (3) she was subjected to an adverse employment action; and
(4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that
the Agency's reasons were a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is her obligation
to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502 (1993); U.S. Postal Serv. Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983).
For purposes of this decision, the Commission will assume, without so
finding, that Complainant is an individual with a disability entitled
to coverage under the Rehabilitation Act. The Commission finds that
the Agency has articulated legitimate, nondiscriminatory reasons
for its actions. PM affirms that on March 20, 2009, he received
Complainant’s light-duty request with his doctor’s restrictions
indicating that Complainant could work up to eight hours a day, walk
for one to two hours a shift, stand for one to two hours a shift,
and lift up to 35 pounds. ROI, PM’s Aff., at 2. Complainant claims
that when he worked in Section 361, he stood for a minimum of two hours
and then was on his feet for up to another two hours in Section 030.
PM maintains that he never instructed Complainant to perform any duties
outside his restrictions nor did he ever direct anyone to have Complainant
work outside his restrictions. Id. at 3. Further, PM states there was
no reason for Complainant to stand in Section 030 because there were
chairs in that area that he could have utilized and no one is required to
stand in that section. Id. In addition, the Manager of Distributions
Operations (MDO) confirms that Complainant was not instructed to work
outside his restrictions. ROI, MDO’s Aff., at 3. MDO adds that, in
Section 030, there are rest bars and chairs for employees to use when
working in that area. Id.
As to Complainant’s claim that he was misclassified as a light duty
employee, PM affirms that Complainant was injured as a letter carrier,
was assigned to mail processing, and was classified as limited duty
until March 20, 2009. ROI, PM’s Aff., at 4. PM asserts that on March
20, 2009, Complainant requested and was approved for light duty. Id.
PM adds that an employee who cannot perform the duties they were hired
for (or have agreed to) have the right the request light duty. Id.
MDO confirms that Complainant requested light duty while he awaited
reassessment of his workers’ compensation claim. ROI, MDO’s Aff., 4.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden of
establishing that the Agency’s stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this by showing that the Agency was
motivated by a discriminatory reason. Id. (citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502 (1993)). The Commission finds that the
record is devoid of any persuasive evidence that discrimination was a
factor in any of the Agency's actions. At all times, the ultimate burden
of persuasion remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reasons were not the real reasons, and
that the Agency acted on the basis of discriminatory animus. Complainant
has failed to carry this burden. Accordingly, the Commission finds
that Complainant has failed to show that he was discriminated against
as alleged.
Denial of Reasonable Accommodation
To the extent that Complainant is alleging that he was denied reasonable
accommodation, the Commission notes that the Rehabilitation Act of
1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that Complainant was denied
a reasonable accommodation, Complainant must show that: (1) she is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g);
(2) she is a qualified individual with a disability pursuant to 29
C.F. R. § 1630.2(m); and (3) the Agency failed to provide a reasonable
accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, No. 915.002
(Oct. 17, 2002). Under the Commission's regulations, an agency is
required to make reasonable accommodation to 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.
See 29 C.F.R. §§ 1630.2(c) and (p). For purposes of analysis, the
Commission shall assume, without so finding, that Complainant is an
individual with a disability and a qualified individual with a disability.
The Commission finds that Complainant has not shown that he was denied
an accommodation. The Agency provided Complainant with a limited-duty
assignment in accordance with his restrictions until March 20, 2009,
when Complainant requested and was granted a light-duty assignment
while his workers’ compensation reclassification was being processed.
Complainant was required to stand and case mail for two hours in
accordance with his restrictions and he then worked in the 030 Section
where chairs were available for the remaining six hours of his shift.
While the record indicates that Complainant may have preferred to be
classified as limited-duty and work exclusively in the 030 Section; there
is no evidence in the record showing that Complainant was required to work
beyond his medical restrictions. The Agency may choose among reasonable
accommodations as long as the chosen accommodation is effective.
See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002). Complainant has
presented no evidence that this was an ineffective accommodation.
Hostile Work Environment
Finally, to the extent that Complainant is alleging that he was subjected
to a discriminatory hostile work environment, the Commission finds under
the standards set forth in Harris v. Forklift Sys., Inc., 510 U.S. 17
(1993) that Complainant's claim of hostile work environment must fail.
See Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994). A finding that Complainant was subjected to a
hostile work environment is precluded by the Commission’s determination
that Complainant failed to establish that any of the actions taken by the
Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal
Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the FAD.
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 (Nov. 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
March 18, 2011
Date
1 Complainant also alleged that the Agency discriminated against him on
the basis of disability and in reprisal for prior protected EEO activity
when: (2) during the period of September 14, 2004 - May 3, 2006, he was
denied overtime; (3) on September 18, 2004, his salary was reduced; and
(4) on October 3, 2001, he was terminated. The Agency dismissed these
claims pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact.
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0120101580
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013