0320110005
09-27-2012
Renaldo D. Ochoa, Jr., Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Renaldo D. Ochoa, Jr.,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 0320110005
MSPB Nos. SF-0752-10-0353-I-1, SF-0353-10-0402-I-1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUES PRESENTED
The issues presented are: (1) whether the Commission can consider Petitioner's involuntary retirement claim (MSPB No. SF-0752-10-0353-I-1); and (2) whether, as to Petitioner's restoration claim (MSBP No. SF-0353-10-0402-I-1), the decision of the MSPB, with respect to Petitioner's allegations of national origin, sex, religion, color, disability, age, and reprisal discrimination, constitutes a correct interpretation of any applicable law, rule, regulation, or policy directive, and is supported by the evidence in the record as a whole.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Rural Carrier at the Agency's Cedar Station in Fresno, California. As a Rural Carrier, Complainant cased, delivered, and collected mail along a prescribed rural route using a vehicle. On May 8, 2008, Petitioner submitted a written request for light duty. Medical documentation accompanying Petitioner's request listed the following restrictions: no heavy lifting; no pushing greater than 20 pounds; no reaching up to shoulder height; no repetitive overhead activities; no repetitive activities or motions with the right hand; and no prolonged or repetitive use of a keyboard or keypad.
In a letter dated May 12, 2008, the Supervisor, Customer Services (S1) denied Petitioner's request for light duty. Citing Article 13.3 of the Collective Bargaining Agreement (CBA) between the Agency and the National Rural Letter Carriers' Association, S1 explained in the letter that the denial was "due to the fact that there is no light duty available to Rural Carriers." The record reflects that CBA Article 13.3 (No Light Duty Assignments) states, "In the rural carrier craft, at any local installation, regular routes shall not be considered for any light duty assignment."
The Agency differentiates between "light duty" and "limited duty." According to Handbook EL-307, Reasonable Accommodation, An Interactive Process, "light duty" refers to work provided to an employee who is unable to perform the full duties of his job due to a non-work related injury. In contrast, "limited duty" refers to a temporary assignment for an employee who is unable to perform his regular duties due to an occupational illness or injury. At the time S1 denied Petitioner's request for light duty, the U.S. Department of Labor's Office of Workers' Compensation Programs (OWCP) had not yet accepted Petitioner's claim for compensation for a work-related injury.1
Petitioner filed a mixed case complaint alleging that the Agency discriminated against him on the bases of race (Hispanic),2 national origin (Hispanic), sex (male), religion (Catholic), color (Brown), disability, age (51), and reprisal for prior protected EEO activity when, effective February 28, 2009, he was forced to retire. The Agency issued a decision finding that Petitioner was not discriminated against as alleged. Thereafter, Petitioner filed an appeal with the MSPB (MSPB No. SF-0752-10-0353-I-1). The MSPB docketed a separate appeal (MSPB No. SF-0353-10-0402-I-1) based on Petitioner's allegation that the Agency violated his restoration rights as a partially recovered employee when, on May 12, 2008, it denied his request for light duty. On September 14, 2010, after a hearing, an MSPB Administrative Judge (MSPB AJ) issued an initial decision: (a) finding that Petitioner's retirement was involuntary and reversing the retirement action; (b) denying the request for restoration; and (c) finding no discrimination on both claims.3
In her analysis of the restoration claim, the MSPB AJ determined that the CBA guided the Agency's response to Petitioner's request for light duty and that S1 interpreted the language of the CBA to mean that Rural Carriers were prohibited from working light duty.
In finding no disability discrimination, the MSPB AJ determined that Petitioner was an individual with a disability, Petitioner requested reasonable accommodation when he requested light duty within his medical restrictions, and the Agency refused to engage in the interactive process. The MSPB AJ, however, determined that the Agency did not fail to accommodate Petitioner because he did not identify a reasonable accommodation that would have allowed him to perform the essential functions of his Rural Carrier position or another vacant, funded position. The MSPB AJ noted that the Agency was not required to: provide an employee with limited or light duty tasks that do not constitute a separate position; restructure a position to eliminate the essential functions; or create a new position.
In finding no discrimination on the remaining bases, the MSPB AJ determined that Petitioner did not show that the Agency's actions were motivated by his race, national origin, sex, religion, color, age, or prior EEO activity.
The Agency filed a petition for review by the full Board and argued that the MSPB AJ erred in finding that Petitioner's retirement was involuntary. Petitioner filed a cross-petition for review and argued that the MSPB AJ correctly found his retirement to be involuntary, but erred in finding no discrimination. On March 6, 2012, the Board issued a final order reversing the MSPB AJ's initial decision on Petitioner's involuntary retirement claim (MSPB No. SF-0752-10-0353-I-1) and dismissing the matter for lack of jurisdiction. In its final order, the Board explicitly stated that it would not revisit the MSPB AJ's ruling on Petitioner's restoration claim (MSPB No. SF-0353-10-0402-I-1) because neither party intended its submission to constitute a petition for review on that claim. Petitioner then filed the instant petition regarding both claims.
ARGUMENTS IN PETITION
In his petition, Petitioner requested that we reverse the MSPB AJ's finding of no discrimination. Specifically, Petitioner argued that the Agency refused to accommodate him when it denied his request for light duty. In addition, Petitioner argued that the CBA does not state that Rural Carriers are not entitled to light duty; it addresses the "rural route" and not the employee's entitlement to light duty in other areas of the Agency. Further, Petitioner argued that the Agency gave limited or light duty assignments to white females and named 9 such employees. Moreover, Petitioner argued that the MSPB AJ erred in disapproving several of those employees as witnesses, asserting that their testimony would have established that there was limited or light duty work available in other crafts within the Agency.4 Finally, Petitioner argued that his involuntary retirement was discriminatory and that the MSPB AJ failed to consider the Agency's violation of a settlement agreement.5
In response, the Agency requested that we concur with the MSPB's finding of no discrimination. Specifically, the Agency argued that Petitioner is not a "qualified" individual with a disability. In addition, the Agency asserted that the employees identified by Petitioner are not valid comparators because they are not similarly situated.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
MSPB No. SF-0752-10-0353-I-1 - Involuntary Retirement Claim
In its March 6, 2012 final order, the Board found that it lacked jurisdiction over Petitioner's involuntary retirement claim. When the MSPB has denied jurisdiction in such matters, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, this case will be considered a "non-mixed" matter and processed accordingly. See generally Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Philips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles, this matter is referred to the Agency for further processing as outlined below in the Notice To The Parties.
MSPB No. SF-0353-10-0402-I-1 - Restoration Claim (Denial of Request for Light Duty)
I. Reasonable Accommodation - Disability
Upon review of the record, we concur with the MSPB's finding of no disability discrimination. As an initial matter, we note that an agency's failure to engage in the interactive process does not, by itself, demand a finding that an employee was denied a reasonable accommodation. See Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). Rather, to establish a denial of reasonable accommodation, an employee must show that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation. Id. Assuming, arguendo, that Petitioner is an individual with a disability, we agree with the MSPB AJ that Petitioner is not a "qualified" individual with a disability within the meaning of the Rehabilitation Act. A "qualified" individual with a disability is one who satisfies the requirements for the position he holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.
29 C.F.R. � 1630.2(m).
First, we agree with the MSPB AJ that Petitioner did not identify a reasonable accommodation that would have allowed him to perform the essential functions of his Rural Carrier position. We note that, in his petition, Petitioner did not dispute this finding by the MSPB AJ. In addition, we note that Petitioner provided testimony that he was unable to perform his work duties and requested reassignment to a light duty position in another craft.
Second, we agree with the MSPB AJ that Petitioner did not identify a vacant, funded position for which he could have performed the essential functions, with or without reasonable accommodation, and there is no evidence of one in the record. In reassignment cases, a petitioner has an evidentiary burden to establish that it is more likely than not that there were vacancies during the relevant time period into which he could have been reassigned. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002). Although Petitioner argued in his petition that the Agency provided other employees with limited or light duty assignments, he did not show that there were vacant positions (limited duty, light duty, or otherwise) in May 2008 that the Agency could have placed him in.
Accordingly, we conclude that the MSPB correctly held that Petitioner failed to show that the Agency's actions constituted unlawful disability discrimination.
II. Disparate Treatment - National Origin, Sex, Religion, Color, Age, Reprisal
Upon review of the record, we concur with the MSPB's finding of no national origin, sex, religion, color, age, or reprisal discrimination. Assuming, arguendo, that Petitioner established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, S1 testified that she denied Petitioner's request for light duty because her understanding of the CBA was that Rural Carriers were not eligible for light duty.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Petitioner to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for national origin, sex, religion, color, age, or reprisal discrimination.
Here, we agree with the MSPB AJ that Petitioner failed to show that the Agency's articulated reason was pretextual. Although Petitioner asserted that S1's interpretation of CBA Article 13.3 is erroneous because the provision does not prohibit light duty for Rural Carriers, we will not attempt to resolve this dispute as to what is the correct interpretation of the CBA. We note that the determination as to whether Petitioner was discriminated against in this matter does not turn on whether S1 correctly applied the relevant contract provision, but rather, whether it was applied in a discriminatory manner.
Moreover, there is no evidence that the S1 treated Petitioner differently than similarly situated employees outside of his protected classes. To demonstrate that another employee is a similarly situated comparator, Petitioner must show that all relevant aspects of the employee's work situation were nearly identical to his own. See Hunter v. U.S. Postal Serv., EEOC Request No. 05960762 (Oct. 1, 1998). Regarding the white females named in the instant petition, we find that they are not similarly situated to Petitioner for several reasons. First, there is no evidence, beyond Petitioner's bare assertions, that any of the named employees requested and received light duty. We note that Petitioner's July 3, 2010 prehearing submission contains documentation showing that many of the named employees had accepted OWCP claims and had received limited duty, not light duty. In addition, one of the named employees testified at the hearing that the Agency never provided her with light duty work when she was a Rural Carrier. Second, PS Form 50s in the record reflect that many of the named employees either were not Rural Carriers or were not assigned to Cedar Station. Third, PS Form 50s in the record reflect that some of the named employees had retired from the Agency four to eight years prior to the adverse action at issue here.
Accordingly, we conclude that the MSPB correctly held that Petitioner failed to show that the Agency's actions constituted unlawful national origin, sex, religion, color, age, or reprisal discrimination.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to DENY CONSIDERATION of MSPB No. SF-0752-10-0353-I-1 and to CONCUR with the final decision of the MSPB finding no discrimination in MSPB No. SF-0353-10-0402-I-1.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b) that the Agency, if it has not already done so, is required to process his allegations of discrimination, in MSPB No. SF-0752-10-0353-I-1, pursuant to 29 C.F.R. � 1614.108(f). Within 30 calendar days of its receipt of this decision, the Agency shall notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision, pursuant to
29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
___9/27/12_______________
Date
1 On November 2, 2007, Petitioner filed a claim for compensation with OWCP. On February 8, 2008, OWCP denied Petitioner's claim. Over a year later, on February 12, 2009, OWCP issued a new decision accepting Petitioner's claim.
2 Although Petitioner alleged that discrimination based on race played a role in the Agency's actions, the Commission views the term "Hispanic" to be a description of national origin, not of race. Therefore, we will analyze Petitioner's claim of race discrimination as one of national origin discrimination.
3 The MSPB AJ consolidated the appeals for purposes of a hearing and issued one initial decision resolving both appeals.
4 Although Petitioner asserted that the MSPB AJ improperly excluded testimonial evidence from the named employees, we note that the Commission has no jurisdiction over procedural determinations made by the MSPB, e.g., what witnesses to approve or disapprove for a hearing.
5 Petitioner alleged that the Agency violated the terms of a June 26, 2008 EEO settlement agreement (Agency No. 4F-956-0127-08). On June 30, 2011, Petitioner filed an appeal with the Commission (EEOC Appeal No. 0120113334) regarding the alleged breach. That appeal is currently pending. Accordingly, we will not address Petitioner's breach allegation in this decision.
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0320110005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110005