01972452a
07-08-2000
Nathan B. Green, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
01972452
Nathan B. Green v. United States Postal Service
July 8, 2000
.
Nathan B. Green,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Region),
Agency.
Appeal No. 01972452
Agency No. 5-N-1415-92
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of color (Brown), national origin (Mexican), race (Black/Mexican)
and physical disability (degenerative discs), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
the Rehabilitation Act of 1973,<1> as amended, 29 U.S.C. � 791, et seq.<2>
Complainant alleges he was discriminated against when: (1) he was issued a
Notice of Removal for being Absent Without Leave (AWOL) on June 11, 1992;
and (2) he was denied reasonable accommodation on a continuous basis with
the last date being May 1, 1992. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that complainant was employed as a PS-4 Mailhandler
at the agency's San Jose, California General Mail Facility, when the
alleged acts of discrimination occurred. In 1989, complainant injured
his back at work, and this prevented him from performing the duties
of his position. The Office of Workers' Compensation Programs (OWCP)
accepted complainant's claim that he had incurred an on-the-job injury
(low back strain), and complainant returned to work at the agency in a
limited duty capacity. In January of 1990, complainant was reinjured,
and worked intermittently at the San Jose facility. Complainant averred
that the light duty work assigned to him by the agency in 1990 and
continuously thereafter exceeded the restrictions established by his
treating physician. Pursuant to complainant's EEO complaint filed on
December 21, 1992, the agency conducted an investigation and issued its
initial FAD finding no discrimination. Specifically, the FAD found that
complainant failed to establish a prima facie case of discrimination based
on race, color, and physical disability in that he failed to show that he
was treated differently than any similarly situated employees. The agency
further found that it articulated legitimate, nondiscriminatory reasons
for its actions, namely, that complainant had been offered limited duty
positions within his medical limitations, but he refused to perform them
and the agency was forced to remove him.
Complainant appealed this decision, and the Commission found that the
record was inadequate to support the agency's FAD, as the agency's
investigation on complainant's allegations of disability discrimination
was deficient and there was insufficient evidence from which to conclude
whether the positions offered by the agency were within his restrictions.
As a result, the Commission vacated the FAD and remanded the case to the
agency for a supplemental investigation regarding the issue of whether
complainant is a qualified individual with a disability and if so,
whether the agency provided reasonable accommodation. The Commission also
directed the agency on remand to investigate complainant's allegation
that he was discriminated against due to his national origin (Mexican).
See Green v. United States Postal Service, EEOC Appeal No. 01942485
(May 8, 1996).
On remand, the agency conducted a supplemental investigation pursuant to
the Commission's decision. The agency then issued a FAD which found that
complainant did not establish a prima facie case of discrimination based
on race, color, national origin or physical disability, as he failed to
demonstrate that he was treated differently than other similarly situated
employees. The FAD further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that regarding the
issue of reasonable accommodation, complainant was repeatedly offered
limited duty jobs within his medical limitations as certified by the
OWCP, but complainant refused to accept these jobs. The FAD found
that there was no evidence to support complainant's allegation that the
agency provided false and misleading information to examining physicians
regarding the history or physical requirements of the limited duty jobs
offered. The FAD noted that complainant had not submitted any additional
information that was not considered at the time the job offers were made,
and that the agency took appropriate action when complainant failed
to report for the limited duty positions he was offered. The FAD then
concluded that as complainant
failed to show that the agency's explanations were a pretext for
discrimination, he did not demonstrate that he was the victim of
intentional discrimination.
On appeal, complainant contends that the agency did not attempt to
reasonably accommodate him, as the positions he was offered exacerbated
his back injury. The agency requests that we affirm its FAD.
After a careful review of the record, the Commission finds that
complainant failed to demonstrate a prima facie case of discrimination
on the bases of race (Black/Mexican), color (Brown) and national origin
(Mexican), as there is no evidence that similarly situated employees not
in complainant's protected classes were treated differently regarding
reasonable accommodation. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). We note that complainant provided no supplemental evidence on
remand to support his allegation that he was treated differently due
to his Mexican heritage or that the agency systematically discriminated
against Mexican-Americans.
Further, we note that the Commission directed the agency to specifically
analyze the issue of whether the agency failed to reasonably accommodate
complainant in addition to analyzing whether he was subjected to disparate
treatment due to his disability. However, on remand the agency again
concluded that complainant was not subjected to disparate treatment
on any basis, and did not address complainant's contention that the
agency discriminated against him by failing to reasonably accommodate
his disability pursuant to the provisions of the Rehabilitation Act.
In addressing the merits of complainant's complaint, the Commission
notes that in order to establish a violation of the Rehabilitation
Act, complainant must show that he is an individual with a disability
within the meaning of the Act, i.e. that: 1) he is an individual with a
disability as defined in 29 C.F.R. � 1630.2(g); and 2) he is a "qualified"
individual with a disability as defined in 29 C.F.R. � 1630.2(m).
The agency's FAD did not address whether complainant is an individual
with a disability within the meaning of the Regulations, and we remind
the agency that such a determination is a required element of a prima
facie case of disability discrimination.
Nevertheless, the Commission finds that based on the record before us,
even assuming, arguendo, that complainant established that he is a
qualified individual with a disability as that term is defined by the
Rehabilitation Act, he failed to demonstrate that the agency discriminated
against him by failing to reasonably accommodate his disability. After a
review of the agency's supplemental investigation, we find that the
evidence developed pursuant to the Commission's ORDER in its
previous decision is sufficient to demonstrate that the limited and light
duty positions offered to complainant by the agency between March 5,
1990 and May of 1992 were within his physical limitations. The record
reveals that each time the agency offered complainant a limited duty
position (i.e., Modified Mailhandler), several physicians concurred that
the position was within
complainant's physical restrictions. The Modified Mailhandler position
primarily required performing tasks such as answering telephones, computer
processing and watching mail being weighed. Accordingly, the Commission
stated in its prior decision that complainant must document the particular
manner in which the agency violated his medical restrictions. We note
that complainant merely asserted the Modified Mailhandler positions
were inadequate, but has provided no documentation demonstrating that
the limited/light duty positions he was offered would have exacerbated
his existing back injury or that he was physically unable to perform
duties of the modified positions. We further note the determinations by
OWCP that the weight of the evidence established that the limited duty
positions offered by the agency were within his physical limitations.
We therefore find no evidence to contravene the FAD's ultimate conclusion
that the agency reasonably accommodated complainant by offering him a
position within his restrictions, which complainant refused to accept.
We therefore conclude that the agency did not discriminate against
complainant when he was issued the Notice of Removal on June 11, 1992.
Therefore, after a careful review of the record and arguments and
evidence not specifically addressed in this decision, and for the reasons
articulated above, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive the decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 8, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.