0120110945
05-24-2011
Tomas Cook, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Tomas Cook,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120110945
Agency No. 1A-102-0055-09
DECISION
On December 29, 2010, Complainant filed an appeal from the Agency's November 18, 2010, final decision concerning an equal employment opportunity (EEO) complaint 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency's Morgan Processing and Distribution Center in New York, New York.
On December 10, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was the victim of unlawful employment discrimination on the bases of national origin (Hispanic), disability (foot, ankle), and age (51) when:
on June 12, 2009, the Agency denied Complainant a light duty accommodation.
The record reveals that Complainant sustained injuries to his left ankle and foot on May 19, 2004. The injuries required surgery, and the Office of Workers Compensation Program (OWCP) accepted Complainant's injury on July 16, 2004. Based on medical evidence provided by Complainant's physicians and an OWCP-appointed physician, OWCP terminated Complainant's claim on November 6, 2008.
On December 12, 2008, Complainant submitted a request to be reassigned to a temporary light duty assignment. Complainant provided medical evidence that reflected that he was restricted to four hours of work, daily for six months; he was to avoid lifting more than thirty pounds; and he was to avoid prolonged standing for more than five hours.
The record reveals Complainant was in a light duty status between June 4 and July 2, 2009. In a June 12, 2009 letter, the Agency informed Complainant that, due to his light duty status, he was required to call in every day to see if any work was available. Complainant did so on that day and was told no work was available, resulting in the instant formal complaint.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination.
Specifically, the Agency found Complainant did not establish a prima facie claim of disability discrimination because he did not demonstrate he was a qualified individual with a disability. The Agency also found that Complainant also did not establish a prima facie claim of national origin, color, or age discrimination because he was unable to establish a causal link between his protected bases and the Agency's actions. Alternatively, the Agency accepted as legitimate and nondiscriminatory Complainant's supervisors' (S1 and S2) explanation that Complainant did not work on June 12, 2009, because there was no work available for him, due to decreased mail volume.
CONTENTIONS ON APPEAL
Complainant did not submit any comments in support of his appeal. The Agency argues that its final decision is fully supported by the evidence.
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 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").
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). She 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
For purposes of analysis only, we assume without so finding, that Complainant is a qualified individual with a disability. Upon review of the record, we cannot draw any justifiable inference of national origin, color, age, or disability based discrimination in Complainant's favor. We discern no basis to disturb the Agency's final decision.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision finding no discrimination.
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
May 24, 2011
__________________
Date
2
0120110945
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110945