0120073968
01-21-2010
Teresa M. Evans and Lewis Pryor, Complainants, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Teresa M. Evans and Lewis Pryor,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal Nos. 0120073968, 0120074014
Agency Nos. 1C431001207, 1C431001107
DECISION
Complainants each filed a timely appeal with this Commission from
separate final agency decisions (FAD) dated September 7 and 14, 2007,
respectfully, dismissing their formal complaints of unlawful employment
discrimination alleging a violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeals and, pursuant to 29 C.F.R. � 1614.606,
consolidates them for a single decision because they arise from the same
factual situation. For the following reasons, the Commission AFFIRMS
the FADs.
BACKGROUND
At all times relevant to these complaints, complainants worked as
clerks at the agency's Processing and Distribution Center facility in
Columbus, Ohio. Complainant Evans has osteoarthritis in both knees and
complainant Pryor has been diagnosed with epilepsy. Both complainants
were provided temporary light duty assignments. On or about January
19, 2007, complainants' manager (RMO) began denying overtime to both.
RMO informed light duty employees that they would not be allowed to sign
the overtime desired list outside of their pay location in accordance
with the collective bargaining agreement with the union. On March 19
and 20, 2007, complainant Pryor (epilepsy) and Evans (osteoarthritis),
respectfully, filed EEO complaints alleging that they were discriminated
against on the basis of disability when on or about January 19, 2007,
and continuing, complainants were denied accommodations in regard to
overtime opportunities.
At the conclusion of the investigations, complainants were provided
with copies of the reports of investigation and notice of their right
to request a hearing before an EEOC Administrative Judge (AJ). When
complainants did not request a hearing within the time frame provided in
29 C.F.R. � 1614.108(f), the agency issued final decisions pursuant to 29
C.F.R. � 1614.110(b). As to complainant Evans, the FAD found that she
failed to establish a prima facie case of disability discrimination as
she failed to show that she is an individual with a disability under the
Rehabilitation Act. The FAD then assumed arguendo that complainant had
established a prima facie case of discrimination and found that the agency
had articulated legitimate, nondiscriminatory reasons for its actions.
The FAD found that RMO became aware that light duty employees were
working overtime in the same unit as their light duty assignments and
that he believed that this was a violation of the Local Memorandum of
Understanding with the union. The FAD found that RMO believed that the
union could file a grievance for payment of the same hours to the overtime
desired list employees who had not been used in the unit if complainant
or other light-duty employees were allowed to work overtime in their
temporarily assigned unit. The FAD found that RMO believed that light
duty employees working overtime in a unit other than their bid unit to
be a violation of the collective bargaining agreement between the agency
and the union. The FAD found that complainant had offered no evidence
that would establish management's reasons for its actions as pretextual.
Consequently, the FAD concluded that complainant Evans failed to prove
that she was subjected to discrimination as alleged.
As to complainant Pryor, the FAD found that he failed to establish a prima
facie case of disability discrimination as he failed to show that he is
a person with a disability under the Rehabilitation Act. The FAD also
found that despite complainant's mention of reasonable accommodation,
a theory of reasonable accommodation was not applicable in this case.
The FAD then assumed arguendo that complainant had established a prima
facie case of discrimination and found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. The FAD found that
RMO stated that complainant was not allowed to sign the overtime desired
list because light duty employees can only sign the overtime list in their
own pay location. The FAD found that RMO stated that in January 2007,
he noticed that light duty employees were signing the overtime desired
list for units where they did not work and he informed the union that this
would not be allowed. The FAD found that RMO stated that it was against
the collective bargaining agreement to sign the incorrect overtime list.
The FAD found that even if RMO was mistaken about the administration
of overtime in accordance with the collective bargaining agreement,
there was no proof that RMO discriminated against complainant because
of his disability. As a result, the FAD found that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainants allege that the FADs misapplied prior precedent
to this case. Additionally, complainants allege that the agency has
re-implemented a discriminatory policy regarding overtime opportunities
to employees on limited duty. Complainants therefore request that we
reverse the FADs.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, 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").
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. RMO asserts that he discovered
that complainants were working overtime in the same unit as their light
duty assignments. Evans Report of Investigation (EROI), RMO's Aff. at 1;
Pryor Report of Investigation (PROI), RMO's Aff. at 3. RMO maintains
that he believed that this was a violation of the Local Memorandum
of Understanding with the union. EROI, RMO's Aff. at 1; PROI, RMO's
Aff. at 3. RMO asserts that overtime desired lists are, by contract,
comprised of full-time regular employees holding bid assignments in the
unit, unassigned regular employees assigned to the unit, or limited-duty
employees re-assigned to the unit. EROI, RMO's Aff. at 1. RMO affirms
that complainants were full-time regular employees from other units
who were temporarily assigned to the 030 unit. Id. RMO further adds
that complainant Evans had signed the overtime desired list for her
regular unit during the first quarter of 2007. Id. RMO avers that he
believed that if complainants and the other light duty employees were
given overtime in the 030 unit, the union could file a grievance for
payment of the same hours to overtime desired list employees who had
not been used in the unit. Id.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainants now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. But a reason cannot be proved to be "a pretext
for discrimination" unless it is shown both that the reason was false,
and that discrimination was the real reason. St. Mary's Honor Center
v. Hicks 509 U.S. 502, 515-516, 113 S.Ct. 2742, 2752 (U.S.Mo.,1993).
Even if RMO's beliefs regarding overtime were mistaken, complainants
have presented no evidence establishing that the agency's reasons are
pretextual. In their identical appeals, complainants allege that the
agency has implemented a discriminatory policy regarding "employees on
limited duty." The record indicates however, that both complainants
were on light duty assignments, not limited duty. Furthermore, the
record reveals that RMO's actions only affected light duty employees
as disabled limited duty employees are considered part of the unit
where they have been reassigned. See EROI, RMO's Aff. at 1. At all
times, the ultimate burden of persuasion remains with complainants to
demonstrate by a preponderance of the evidence that the agency's reasons
were not the real reasons, and that the agency acted on the basis of
discriminatory animus. Complainants failed to carry this burden.
Denial of Reasonable Accommodation
To the extent that complainants are claiming a denial of reasonable
accommodation, we note that under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical and
mental limitations of a qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p). Assuming without deciding (for
the purposes of this decision) that complainants are individuals
with a disability and qualified individuals with a disability, the
Commission concludes nonetheless that complainants have failed to show
that the agency denied their requests for a reasonable accommodation.
Because overtime is a program the agency offers to its employees, the
agency has a duty to make reasonable accommodation to enable complainant
to work overtime. See Spaulding v. U.S. Postal Serv., EEOC Appeal
Nos. 01982863 & 01991949-53(Sept. 14, 2001); Gil v. U.S. Postal Serv.,
EEOC Appeal No. 01990675 (Sept. 14, 2001).
As to complainant Evans, RMO stresses that she was allowed to work
overtime in her regular unit if the work did not violate her medical
restrictions and if she was available when it was called. EROI, RMO's
Aff. at 3. Complainant Evans has presented no evidence that she was
unable to work overtime in her regular unit. Likewise, complainant Pryor
also failed to present any evidence indicating that he was denied overtime
in his regular unit. The record reveals that complainants were not denied
all overtime opportunities, rather only overtime opportunities outside
of their regular unit pursuant to the collective bargaining agreement.
There is also no evidence in the record to indicate that complainants
were precluded from bidding on a position which would provide them with
opportunities to work overtime. Further, we note that in U.S. Airways,
Inc. v. Barnett, the Supreme Court held that it was unreasonable, absent
"special circumstances," for an employer to provide an accommodation
which conflicts with the terms of a seniority system (collective
bargaining agreement). 535 U.S. 391 (April 29, 2002). We find that
complainants have failed to present any evidence establishing any special
circumstances. Accordingly, we find that no showing has been made that
the agency failed to accommodate either complainants' disability.
CONCLUSION
We AFFIRM the FAD finding no discrimination because a preponderance of
the evidence of record does not establish that discrimination existed
as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 21, 2010
Date
2
0120073968
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120073968