0120112763
10-17-2011
Kenneth Moore, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Kenneth Moore,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120112763
Agency No. 1A-102-0056-09
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s March 31, 2011 final decision concerning
an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant worked as a Mail Processing Clerk,
PS-09, at the Agency’s Morgan Processing and Distribution Center (P&DC)
in New York, New York.
On December 14, 2009, Complainant filed a formal complaint. Therein,
Complainant claimed that the Agency discriminated against him on the
basis of disability (back and legs) when:
(1) on April 17, 2009, management denied him the right to bid based on
his disability; and
(2) on September 14, 2009, his supervisor instructed him to work in the
short paid section.
The record reflects that Complainant identified his physical condition
as Degenerative Lumbar disease which causes pain in his back, buttocks,
hips, legs, and feet. Complainant averred that he has suffered from
this condition since January 1997, and that the latest prognosis from
his physician indicated the condition is guarded with very limited
improvement. Complainant further averred that the pain associated
with the condition is permanent. Complainant stated that the condition
causes pain when he sits for more than 40-50 minutes or when he stands for
more than 15 minutes or so at a time. Complainant stated that bending,
twisting, stooping, pushing/pulling or lifting has also caused pain.
Complainant maintained that he is required to take a 10-minute break
each hour in order to walk and stretch to ease the pain.
The record reflects that relative to how the condition affects his job
duties, Complainant maintained that he was able to perform the duties of
the Modified Duty assignment; however, he was unable to perform some of
the core duties of his regular Mail Processing clerk position. The most
recent Duty Status Report on file for Complainant was dated November
13, 2009, and assessed that Complainant as only being able to perform
modified duties on a Part-Time 4 hours per day basis. Complainant’s
restrictions included: lifting 10 pounds continuously and up to 35 pounds
intermittently for a total of 3 hours per day; standing for 15 minutes
continuously and 2 hours intermittently for a total of 3 hours per day;
walking for 1 hour continuously and 4 hours intermittently for a total
of 4 hours daily; bending/stooping for 1 hour per day. Complainant was
also not to engage in excessive bending and was not to perform duties
boxing mail.
On January 7, 2010, the Agency issued a final decision dismissing the
instant formal complaint on various procedural grounds. Specifically,
the Agency defined Complainant’s claim of discrimination as two
separate claims of discrimination: claims (1) – (2). The Agency
dismissed claim (1) on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency dismissed claim
(2) for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1).
On remand, the Commission found that the Agency improperly defined
Complainant’s complaint as consisting two separate claims.
The Commission further found that there was insufficient evidence
within the record to determine whether the Agency’s assessment of work
assignment was part of its National Reassessment Process (NRP). Because
the Commission was unable to determine whether or not Complainant’s
claim of discrimination falls within the McConnell et. al v. U.S. Postal
Serv. class action, the Commission vacated the Agency’s dismissal,
and remanded the complaint for a supplemental investigation.
The Agency was ordered to take the following action: (1) supplement
the record in order to determine whether the instant complaint was
identical to the claims in the McConnell class action by including
evidence regarding the work assessment that occurred at the Morgan P&DC
resulting in Complainant being designated as an unassigned employee; and
(2) if the Agency determines that Complainant’s claim was not identical
to those raised in the McConnell class, the Agency shall re-issue its
final order. But if the Agency determines that the complaint raises
the same matter as the McConnell class action, it is ordered to subsume
the instant complaint into the McConnell class action. Moore v. United
States Postal Serv. EEOC Appeal No. 0120101302 (August 3, 2010).
The record reflects that on remand, the Agency determined that the
instant formal complaint does not raise the same matter as the McConnell
class action.
Following the supplemental investigation, Complainant was provided with
a copy of the report of the investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond.
On March 31, 2011, the Agency issued a final decision finding no
discrimination, which is the subject of the instant appeal. The Agency
found that Complainant did not establish a prima facie case of disability
discrimination.1 The Agency further found that assuming, for the
sake of argument only, Complainant established a prima facie case of
disability discrimination, Agency management articulated legitimate,
nondiscriminatory reasons for its actions which Complainant failed to
show were a pretext..
Regarding claim 1, the Senior Manager of Distribution and Operations
(SMDO) stated that she did not deny Complainant the right to bid on
April 17, 2009. Specifically, SMDO stated that the bidding process “is
solely on the employee. [The employees] bid from a computer. If they are
granted a bid, they have a grace period to submit medical documentation.
If an employee does not submit the required medical documentation then
the bid is forfeited.”
Regarding claim 2, the former Supervisor Distribution Operations (SDO)
stated that during the relevant time his Manager Distribution Operations
“instructed me to send all light and limited duty employees to work in
the short paid section. We sent them to the short paid section because
we had an upgrade in the PARS machine that performed their functions on
that machine much faster.” SDO further stated that Complainant’s
disability was not a factor when he was instructed to work in the short
paid section. Specifically, SDO stated “it was a business decision.
The upgrade could perform his old job duties quicker.”
CONTENTIONS ON APPEAL
On appeal, Complainant argues that SMDO’s statement that all employees
had to do was to bid by computer “is factually incorrect as Management
controlled who was allowed to bid.” Complainant further argues that
he “was not afforded the right to bid or accept a different state time,
as I was in the past while on limited duty…because Management didn’t
give me a bid form to bid with.”
Complainant asserts further that several limited duty employees
were permitted to remain in the PARS section, and that the Agency’s
articulated reason for its actions is factually incorrect and is a pretext
for discrimination. Finally, Complainant argues that management’s
decision to send employees to the short paid section “was based solely
upon the employees disabling condition and not based on the employee
ability to perform the job in the PARS section or based on any legitimate
factor such as seniority or who was actually assigned to the section.”
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated
legitimate, nondiscriminatory reasons for its actions, as detailed above.
Neither during the investigation, nor on appeal, has Complainant proven,
by a preponderance of the evidence, that these proffered reasons were
a pretext for unlawful discrimination.
We have Complainant, on appeal, has provided no persuasive arguments
indicating any error in the Agency’s findings. We have thoroughly
considered his various contentions, as referenced above. Nonetheless,
, after a review of the record in its entirety, including consideration
of all statements 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
October 17, 2011
__________________
Date
1 For purposes of this analysis, we assume without finding that
Complainant was a qualified individual with a disability.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2011-2763
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112763
7
0120112763