0120100197
08-03-2012
Riley Woods, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Riley Woods,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120100197
Hearing No. 450-2008-00221X
Agency Nos. 1G-753-0016-08, IG-753-0103-08
DECISION
On October 9, 2009, Complainant filed an appeal from the Agency's September 28, 2009, final decision concerning his equal employment opportunity (EEO) complaints alleging employment 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented in this case are: (1) whether Complainant was subjected to discrimination based on age and disability when he was denied a reasonable accommodation; and (2) whether he was discriminated against based on religion, sex, disability, and retaliation, when he was issued a letter of warning for failure to follow instructions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full Time Mail Handler, M-04 at the Agency's Dallas Processing and Distribution Center (P&DC) in Dallas, Texas. On December 24, 2007, Complainant filed an EEO complaint, Agency number IG-753-0016-08, alleging that the Agency discriminated against him on the bases of disability (sleep work shift disorder/obstructive sleep apnea), and age (47) when:
1. Beginning on October 30, 2007, he was denied a reasonable accommodation.
On December 4, 2008, Complainant filed a second complaint, Agency number IG-753-0103-08, alleging discrimination on the bases of religion (Christian), sex (male), disability (physical) and retaliation (prior EEO activity), when:
2. He was issued a letter of warning (LOW) for failure to follow instructions.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency consolidated the complaints and issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, with respect to complaint no. 1, Complainant indicated that he believed that he was subjected to discrimination because he was not offered a permanent job on Tour 2. The Agency found that assuming arguendo that Complainant established a prima facie case of discrimination as to all of his basis, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was offered accommodation but choose not to accept the accommodations offered to him because it interfered with his school schedule. The Agency explained that on or about September 29, 2006, Complainant asked his Manager for a referral and was referred to the District Reasonable Accommodation Committee (DRAC). Complainant had been diagnosed with sleep work shift disorder/obstructive sleep apnea, so he wanted to obtain a permanent reassignment to a Tour 2 (daytime) schedule. An interactive interview between the DRAC and Complainant occurred on July 14, 2007, where two positions were identified as fitting his request. One of the positions, included a position with a work schedule from 1:30 p.m. to 9:30 p.m., Complainant indicated that he was not interested in the available funded position because he was taking a night class at a University from 3:30 p.m. to 5:30 p.m. Several other positions were also offered to Complainant but he was not interested in these positions because the work schedules conflicted with night school. Further, in an effort to assist Complainant, his Manager offered to request a seniority waiver from the Mail Handlers union for a fully funded day position. The union however, did not grant the waiver.
The Nurse Administrator indicated that the DRAC had made many attempts to accommodate Complainant, but it was determined that there were no other available funded positions for the Complainant on Tour 2. Notwithstanding all of this, the Agency explained that Complainant was allowed to work indefinitely on Tour 2 under a temporary schedule change. Therefore, according to the Agency, it offered Complainant several accommodations and he rejected them. The Agency noted that Complainant was not entitled to the accommodation of his choice.
With respect to complaint no. 2, the Agency again, indicated that assuming Complainant established a prima facie case of discrimination as to all of his alleged bases, it articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was issued a Letter of Warning (LOW) on September 3, 2008, because he failed to submit medical documentation for an injury that he suffered on January 2, 2004. Complainant maintained that the documentation at issue had already been submitted in 2004, so he did not submit it. Management explained that it requested the medical documentation on many occasions and Complainant had ample opportunity to provide it but failed to do so. Therefore, Complainant was issued the LOW. The Agency maintained that Complainant failed to show that these legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency erred when it suggested that there were no vacant funded positions available on Tour 2 or available in a fifty mile radius. He contends that two other employees were assigned to positions on Tour 2 while he has only been allowed to work in a temporary non-committed position on Tour 2. He also questions the credibility of the Agency Nurse and a supervisor who maintained that no vacant funded positions were available. Complainant also questions why the Agency is questioning whether he is a qualified disabled person.
In a second brief submitted by Complainant he contends that the Agency erred when it dismissed, for failure to state a claim, his allegation that management openly discussed his medical information during his arbitration. He also maintained that the Agency erred when it determined that one of his claims was untimely. Complainant explained that arbitration was held on September 29, 2009, the arbitration decision was dated on November 17, 2009, and he received the decision on or about November 23, 2009, but filed his complaint on December 4, 2009, which made his complaint timely. He contends that the Agency erred when it dismissed his complaint as untimely. Complainant requests that these issues be investigated as a part of this complaint.
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, at Chapter 9, � VI.A. (November 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").
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions with respect to both complaints. In complaint no. 1, even if we assume for purposes of analysis only that Complainant is a qualified individual with a disability, the evidence shows that he was offered several potential positions but turned them down because they interfered with his educational opportunities. The Commission has long held that although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 9 (as revised Oct. 17, 2002). We find that the evidence shows that Complainant was offered several vacant, fully funded positions that satisfied his medically limitations but he refused these positions for personal reasons. Further, the evidence shows that in an attempt to accommodate Complainant he was allowed to indefinitely work on Tour 2. We find that Complainant failed to establish that he was denied a reasonable accommodation or that discriminatory animus was involved here. We also find that Complainant failed to show that the Agency's nondiscriminatory reasons were pretext for discrimination.
Further, with regard to complaint no. 2, we find, assuming he established a prima facie case of discrimination as to all of his bases, the Agency again articulated a legitimate, nondiscriminatory reason for its action. The evidence shows that Complainant was issued the LOW because after being repeatedly asked to provide medical information, he failed to do so. We find that Complainant failed to demonstrate that any of the Agency's reason was a pretext for discrimination.
With respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, he has not provided any evidence which shows that vacant funded positions were available that met his accommodation other than the positions that he rejected. Further, Complainant's claims regarding credibility are unsupported by the testimony in the record, we find that other than Complainant disagreeing with the Agency witnesses he has provided no evidence that there testimony was not true.1 We also note that while Complainant maintains that he was treated differently than two other employees, he does not provide any information regarding their disabilities or the circumstances related to their accommodation. Consequently, we cannot determine whether he was in fact treated differently than they were. Finally, with respect to Complainant's second brief we find that it is untimely and the issues included in the brief are unrelated to the instant appeal as they are related to Complainant's grievance and not the appeal before us.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision which found that Complainant failed to demonstrate that he was discriminated against as alleged.
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
_8/3/12_________________
Date
1 Without the benefit of a hearing and a neutral AJ's findings of fact, we must make credibility determinations on the record.
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0120100197
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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