Ronald Shannon, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 10, 2004
01a45266 (E.E.O.C. Nov. 10, 2004)

01a45266

11-10-2004

Ronald Shannon, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ronald Shannon, Jr. v. United States Postal Service

01A45266

11/10/2004

.

Ronald Shannon, Jr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45266

Agency No. 4-G-760-0091-03

Hearing No. 310-2004-00130X

DECISION

Complainant timely initiated an appeal from the agency's final order dated

July 7, 2004, concerning his equal employment opportunity (EEO) complaint

of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.

The record reveals that complainant, a Clerk with the agency's Euless,

Texas facility filed a formal EEO complaint on April 23, 2003. Therein,

complainant claimed that the agency discriminated against him on the

bases of disability (lumbar condition) and in reprisal for prior EEO

activity.<1>

By letter dated August 18, 2003, the agency accepted the following claims

for investigation.

(1) On September 30, 2002, [complainant] was sent back to the Euless

Post Office to work where management failed to accommodate [his]

restrictions to the present time, repeatedly worked [him] outside of

[his] medical restrictions and informed [him] [that he] would have to

drop [his] medical restrictions in order to apply to be an Associate

Supervisor; and

On January 17, 2003, [complainant's] CA-17 (Duty Status Report) was

denied by the Euless Post Office per instructions from the Injury

Compensation Office and the Postal Inspectors were advised that [he]

forged the form.

In addition, the agency dismissed the following claim:

(3) On an unspecified date, the OIC obstructed [his] attempts to deal

with the Department of Labor, Office of Workers' Compensation Programs

(OWCP) concerning [his] condition.

The agency dismissed claim (3) for failure to state a claim.

Specifically, the agency stated that claim (3) was a collateral attack

on the workers' compensation process.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

Regarding complainant's return to Euless from Fort Worth, the AJ stated

that complainant failed to establish a prima facie case of reprisal

and/or disability discrimination. In addition, the AJ stated that the

agency articulated a legitimate, nondiscriminatory reason for its action.

Specifically, the AJ stated that the agency asserted that complainant

was returned to Euless because the agency needed to cut staffing hours

in Fort Worth, and that complainant was excessed because he was not

permanently assigned to Fort Worth.

Regarding complainant's claim that he was not accommodated in Euless, the

AJ found that the evidence failed to sustain this claim. Specifically,

the AJ determined that complainant's testimony regarding being worked

outside of his medical restrictions was �vague and inconsistent.�

Regarding complainant's claim that he was informed by agency management

that he would have to drop his medical restrictions in order to be

considered for the Associate Supervisor Program (ASP), the AJ found

that complainant did not apply for the position and stated that �no

one prohibit[ed] him from submitting an application.� The AJ therefore

determined that complainant's failure to apply for the ASP rendered this

claim moot.

Finally, regarding complainant's claim that his CA-17 was denied and

that the Postal Inspection Service was advised that the form may have

been forged, the AJ found that the agency articulated a legitimate,

nondiscriminatory reason for its actions. Moreover, the AJ stated that

complainant failed to establish pretext.

The agency's final order dated July 7, 2004, implemented the AJ's

decision.

On appeal, complainant, through his attorney, asserts that the AJ's

finding of no discrimination was improper. Throughout his brief,

complainant's attorney states that the AJ's decision shows a tendency to

attribute credibility to the agency's witnesses as opposed to complainant

and his witnesses.

Regarding complainant's reasonable accommodation claim, complainant's

attorney asserts that complainant could have been reasonably accommodated

by �sending him to Arlington or Grapevine.� In addition, complainant's

attorney argues that the AJ improperly equated reasonable accommodation

with �medical restrictions identified on [CA 17 forms]� and that

the apparent agency position that adherence to CA 17 restrictions

equates to reasonable accommodation �ignores the interactive process

requirement.� Complainant's attorney argues that the AJ is �glossing

over� the interactive process requirement by determining that the agency

is not required to provide complainant with the work assignment of his

choosing. Furthermore, complainant's attorney states that the change

in the coding of complainant's clock rings supports complainant's claim

that he was worked outside of his medical restrictions.

Regarding complainant's claim pertaining to the ASP, complainant's

attorney states that the AJ's inclination not to hear evidence on this

claim because the complainant did not actually apply for the position

is inconsistent with Commission precedent. Specifically, complainant's

attorney asserts that �[complainant] testified ...that he considered

it would have been a useless exercise [to apply] and that he would not

have put it past his supervisors to accuse him of insubordination and

attempt to terminate him if he had [applied].�

Regarding complainant's claim that his CA-17 was denied, complainant's

attorney states that it �is significant...that [a named agency employee]

referred the CA-17 to the Inspection Service and the Labor Department

rather than seek clarification from [complainant's] physician.�

The agency requests that we affirm its final order.

Complainant's Return to Euless

A claim of disparate treatment is examined under the three-part 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 case 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).

The record supports the AJ's determination that the agency articulated

a legitimate, nondiscriminatory reason for complainant's return to

Euless. The Postmaster of Fort Worth (PM1) testified that he noticed

that there were budgetary problems at Fort Worth, in August 2002. HT at

160-61. PM1 further testified that he had too many craft employees and

decided to return complainant and another employee back to their permanent

duty stations. HT at 163-65. Moreover, upon review of the record, we

agree with the AJ's finding that complainant failed to establish pretext.

Reasonable Accommodation Claim

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations

of an otherwise qualified individual with a disability unless the agency

can show that accommodation would cause an undue hardship. 29 C.F.R. �

1630.9.

Upon review of the record, we agree with the AJ's determination that

complainant failed to establish that the agency did not provide him with

a reasonable accommodation when it worked him outside of his medical

restrictions. Complainant asserts that he was continuously worked outside

of his medical restrictions upon his return to the Euless facility.

Complainant testified that he returned to Euless on September 30,

2002, and that he clocked out and took annual leave. HT at 26, 87.

While complainant stated that the agency failed to provide him with a

written job offer on his first day, complainant further testified that

his physician removed him from work from October 1, 2002 through November

12, 2002, in order to receive a series of epidural steroid injections.

HT at 33-34. Subsequently, complainant stated that his physician extended

his leave from work for an additional six weeks due to a negative reaction

which he experienced from the injections. HT at 38.

Complainant states that he received a written job offer on January

8, 2003. HT at 39. The record contains of copy of a job offer dated

January 8, 2003. Therein, the agency stated that �[complainant] will

case letter mail using arms only.� Complainant's physician signed the

January 8, 2003 job offer, indicating his concurrence with the offer.

Complainant testified that he returned to work on January 10, 2003.

Complainant also testified that he subsequently returned to his physician

on January 15, 2003, and that his physician completed a new CA-17 form. HT

at 42. The record contains a copy of a CA-17, dated January 15, 2003.

The CA-17 contains the following relevant notations: �no [casing] mail�

and �recommend desk job.� While complainant testified that he was made

to case mail at Euless subsequent to the CA-17 dated January 15, 2003,

complainant's supervisor and the Postmaster of Euless testified that

complainant never cased mail upon his return to Euless. HT at 198, 226.

Complainant's supervisor stated that because of the CA-17 that reflected

that complainant was unable to case mail, he had complainant �answer the

phone [and] help out with second notices on certifieds.� HT at 226.

In addition, complainant's supervisor further stated that while he

had complainant also scan parcels, he informed complainant �not to

lift any packages, stoop, or bend... and not to work outside of his

restrictions.� Id.

While the AJ stated that the testimony pertaining to whether complainant

cased mail was �conflicting�, the AJ found complainant's testimony was

�vague and inconsistent.� The AJ's finding that complainant did not

case mail was largely based on credibility determinations; however, we

note that the AJ's credibility determinations are entitled to deference

due to the AJ's first hand observation of the demeanor and conduct of

the witnesses at the hearing. See Willis v. Department of the Treasury,

EEOC Request No. 05900589 (July 26, 1990). The Commission will generally

not disturb the credibility determination of an AJ, where, as in this

matter, the determinations are based on the credibility of the witnesses.

See Esquer v. United States Postal Service, EEOC Request No. 05960096

(September 6, 1996).

While complainant asserts that the change in the coding of his clock

rings supports his claim that the agency worked him outside of his

medical restrictions, the record does not support this assertion.

The record contains a copy of a letter from the Manager, Human Resources

(HR1), dated January 24, 2003. Therein, HR1 states that the codes for

complainant's labor distribution are changing and that this is for

accounting reporting purposes only. The record also contains a copy

of a letter dated July 14, 2003 from the Manager, Injury Compensation

(M1). Therein, in regard to the coding change, M1 states, �[t]his was

an administrative issue and did not alter your permanent Rehabilitation

status.� In addition, while complainant asserts that the agency could

have reassigned him to Grapevine or Arlington, the agency is not required

to provide complainant with the accommodation of complainant's choice but

may choose between possible accommodations as long as it is effective.

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship

Under the American with Disabilities Act at 17 (October 17, 2002).

Associate Supervisor Program (ASP)

The AJ found that the issue regarding the ASP was moot because complainant

did not apply for the position; however, the Commission determines that

this issue is more properly analyzed in terms of whether it states

a claim.

Generally a claim of discriminatory non-selection fails to state a claim

when the complainant failed to apply for the position. See Owen v. Social

Security Administration, EEOC Request No. 05950865 (December 11, 1997).

A complainant is only aggrieved by such claims where he proves that the

agency discouraged him from applying, or that the application process

was secretive. See Ozinga v. Department of Veteran Affairs, EEOC Request

No. 05910416 (May 13, 1991).

In the instant matter, complainant acknowledges that he never applied

for the position. HT at 84. While complainant testified that he feared

retaliation and discipline if he applied for the ASP, HT at 29-30,

the AJ found that complainant's testimony on this matter �strain[ed]

credulity.� Specifically, the AJ stated �after being reassigned to

Euless, he left work for over three months...because of his injections

and because of stress over the job move, apparently with no fear of

discipline.� The Commission therefore finds that the complainant failed

to show that the agency discouraged him from applying, or otherwise kept

him unaware of the opening. Accordingly, this portion of complainant's

complaint fails to state a claim.

Denial of CA-17 Form

Complainant claims that his CA-17 dated January 15, 2003, was denied

by the Office of Injury Compensation (OIC) and that OIC notified the

Postal Inspection Service and the Department of Labor that the CA-17 form

may have been forged. While the AJ noted that the agency articulated

legitimate, non-discriminatory reasons for its actions, the Commission

finds that this claim is more properly analyzed as to whether it fails

to state a claim.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she

has been discriminated against by that agency because of race, color,

religion, sex, national origin, age or disabling condition. 29 C.F.R. ��

1614.103, .106(a). The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

The Commission finds that this matter fails to state a claim. Complainant

states that his CA-17 was denied by OIC and that the matter was referred

to the Postal Inspection Service; however, the record is devoid of

evidence that complainant was subjected to any type of discipline or

adverse action because of this matter. In addition, assertions by

complainant that this matter had an adverse impact upon the Department

of Labor's processing of his OWCP claim, constitutes a collateral attack

on the workers' compensation process.

Dismissal of Claim (3)

The Commission finds that the agency properly dismissed claim (3)

for failure to state a claim. The Commission has held that an employee

cannot use the EEO complaint process to lodge a collateral attack on

another proceeding. See Wills v. Department of Defense, EEOC Request

No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,

EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States

Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper

forum for complainant to have raised his challenges to actions which

occurred during the OWCP process was in the workers' compensation process

itself. It is inappropriate to now attempt to use the EEO process to

collaterally attack actions which occurred during the OWCP process.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record. We

note that complainant failed to present evidence that any of the agency's

actions were in retaliation for complainant's prior EEO activity or were

motivated by discriminatory animus toward complainant's disability.

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 (S0900)

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 (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

11/10/2004

Date

1For the purposes of analysis only, the Commission assumes, without

finding, that complainant is an individual with a disability.