0120071261
04-09-2009
Timmy L. Meckling, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Timmy L. Meckling,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071261
Agency No. 1H336005805
DECISION
On January 3, 2007, complainant filed an appeal from the agency's December
6, 2006 final decision concerning his equal employment opportunity
(EEO) complaint alleging 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(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler at the agency's Processing and Distribution Center in
Tampa, Florida. On October 4, 2005, complainant filed an EEO complaint
alleging that he was discriminated against on the bases of disability
(ruptured heel) and reprisal for prior protected EEO activity when,
beginning on January 8, 2005, management failed to provide him with a
reasonable accommodation when his limited-duty assignment schedule was
changed.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance
with complainant's request, the agency issued a final agency decision
(FAD) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that
complainant failed to prove that he was subjected to discrimination as
alleged. Specifically, the FAD found that assuming, arguendo, complainant
established a prima facie case of disability and reprisal discrimination,
the agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions that complainant failed to show were pretextual. The FAD
also found that complainant did not show that the agency failed to provide
him with a reasonable accommodation. On appeal, complainant reiterates
his contention that the agency subjected him to unlawful discrimination
when it changed his schedule in January 2005.
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").
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, 143 (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).
Here, we find that assuming, arguendo, complainant established a prima
facie case of disability and reprisal discrimination, the agency
nonetheless articulated legitimate, nondiscriminatory reasons for
its actions. The record reflects that as a result of an on-the-job
injury, complainant was provided with a modified limited-duty assignment
beginning May 4, 2002, with a schedule of 7:00 a.m. to 3:30 p.m., and
Tuesday/Wednesday as the scheduled days off. (Report of Investigation,
Exhibit 7). By letter dated December 7, 2004, management informed
complainant that he was being provided with a revised rehabilitation job
offer, beginning on January 8, 2005, with a schedule of 12:50 p.m. to
9:00 p.m., and scheduled days off of Saturday/Sunday. (R.O.I., Ex. 6).
The Acting Manager, Distribution Operations (AMDO) stated that she
coordinates the light and limited-duty assignments for all tours at
complainant's facility. The AMDO further stated that complainant's
assignment was changed "due to operational needs" and that management
changed the schedules of several employees, including complainant, in
order to consolidate and reduce start times. (R.O.I., Affidavit B).
We find that complainant has proffered no evidence to show that the
agency's articulated reasons for its actions are a pretext for unlawful
disability or reprisal discrimination.
We further find that, even assuming for the purposes of analysis only
that complainant is an individual with a disability and established a
prima facie case of discrimination, the agency met its obligations under
the Rehabilitation Act to provide a reasonable accommodation. The record
reflects that since November 2005, the agency has provided complainant
with a limited-duty position commensurate with his medical restrictions.
We note that, although protected individuals are entitled to reasonable
accommodation under the Rehabilitation Act, they are not necessarily
entitled to their accommodation of choice. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002) at 16.
Here, although it is clear that complainant would have preferred a
different schedule, we find that the agency met its obligations under
the Rehabilitation Act. Accordingly, we AFFIRM the FAD.
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
April 9, 2009
Date
2
0120071261
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120071261