0120062494
09-07-2007
Venus Manguiat Jr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Venus Manguiat Jr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200624941
Agency No. 1F-853-0084-03
Hearing No. 350-2004-00222X
DECISION
Complainant filed an appeal from an agency's final action dated February
2, 2006, finding no discrimination with regard to his complaint. In his
complaint, dated November 8, 2003, complainant, a Level 4 Mailhandler
Machine Relief in the agency's 010 area of the Phoenix Processing
and Distribution Center, Arizona, alleged discrimination based on
race (Pacific Islander, Filipino/American), national origin (Pacific
Islander), sex (male), age (DOB: 6/1/43), disability (cervical strain),
and in reprisal for prior EEO activity when: (1) on September 4, 2003,
he was sent home because there was no work for him; and (2) on September
10, 2003, he received a notice of removal.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ, after a hearing, issued a decision finding no discrimination,
which was implemented by the agency in its final action.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged actions.
The AJ noted that as a result of his left knee injury in December 2000,
complainant was limited to sedentary work only, no kneeing or squatting,
and no stair climbing. He continued to work in the 010 area in a light
duty capacity pursuant to his workers' compensation claim. In November
2001, he injured his neck and back and as a result, he was restricted
to lifting 10 pounds and 15 pounds of pulling or pushing. He also had
restrictions in sitting, standing, walking, kneeling, bending/stopping,
twisting, and operating machinery. He returned to his bid positions
in the 010 area, and worked within his restrictions under workers'
compensation and he was not required to operate the mailhandler machine.
Thereafter, in June 2002, complainant was released to full duty by
the workers' compensation physician. On July 2, 2002, his physician
perceived complainant's prognosis as good with physical restrictions to
last two or four weeks. However, on April 10, 2003, the same physician
evaluated complainant for a fitness for duty and in a Medical Restrictions
Assessment Form, she noted that complainant's medical restrictions
were permanent. Specifically, the physician stated that complainant,
similar to his prior restrictions, was restricted to intermittent sitting,
standing, and walking. Further, he was restricted from any bending,
squatting, climbing, kneeling, and twisting. She noted a 10-pound
intermittent lifting restriction with an additional restriction regarding
simple grasping with his right hand. Based on this evaluation, the agency
referred complainant to the Reasonable Accommodation Committee which
determined that complainant could not be accommodated in his position
because he could not perform all essential functions of a Mailhandler
Machine Relief in the 010 area due to his 10-pound lifting restriction
and no simple grasping with the right hand. Complainant was notified
of this on May 22, 2003.
The AJ stated that although complainant was previously able to
perform in a modified position without the machine, his restrictions
changed in April 2003. Complainant's physical condition continued to
deteriorate and he was restricted in simple grasping with his right hand.
Complainant clearly testified that his right hand was his dominant hand.
The AJ found that based upon his additional restrictions in April 2003,
complainant clearly could not perform the essential functions of his
position which required standing and use of hands to repair mail and
sort it through the machine which were outside of his restrictions.
Upon review of all the evidence submitted and the testimony received
in the hearing, the AJ found that complainant failed to show by a
preponderance of the evidence that he was discriminated against with
regard to the alleged actions. It is noted that the Commission,
without addressing whether complainant is a qualified individual
with a disability, finds that the agency did not fail to reasonably
accommodate him. The Commission also does not find that any agency
actions were motivated by discrimination. Furthermore, complainant does
not allege that he was required to perform his duties beyond his medical
restrictions.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's decision is supported by substantial evidence.
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 tends 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
09/07/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036