01a43573
06-09-2005
Adolf Chavarria Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Adolf Chavarria Jr. v. United States Postal Service
01A43573
June 9, 2005
.
Adolf Chavarria Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43573
Agency No. 4G-780-0071-03
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his 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. and the Equal Pay Act of 1963,
as amended, 29 U.S.C. � 206(d) et seq.
The record reveals that during the relevant time, complainant was employed
as a Distribution/Window Clerk at the agency's El Paso, Texas facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on March 18, 2004, alleging that he was discriminated against
on the bases of disability (back injury/Post Traumatic Stress Disorder),
age (D.O.B. 1/10/57), and reprisal for prior EEO activity when:
(1) Between May 22, 2002, and November 6, 2002, Person A, complainant's
manager, Customer Services, created a hostile work environment by
ordering complainant to perform tasks for which he was not scheme
qualified; and
On November 6, 2002, complainant's position was abolished and he became
an unassigned regular.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. When complainant
failed to respond within the time period specified in 29 C.F.R. �
1614.108(f), the agency issued a final decision finding no discrimination.
On appeal, complainant contends that Person A was aware of his medical
condition but continued to harass him. He also states that the Postmaster
was aware of his medical condition yet decided not to transfer him
away from Person A. Complainant attaches correspondence to his appeal
including a list of people Person A harassed and a list of doctors
to support his claim. Complainant also provides a December 16, 2003
�Clinic Note� from a doctor at �The El Paso Orthopaedic Surgery Group &
Center for Sports Medicine� diagnosing complainant with lumbar spinal
stenosis and lumbar strain. Additionally, complainant provides an April
12, 2004 �Duty Status Report� from the Department of Labor advising him
to return to work on April 13, 2004, and providing medical restrictions.
In response to complainant's appeal, the agency requests that we affirm
its decision
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.
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. 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. 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. U.S. Postal
Service Bd. 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).
Upon review we find that the agency articulated legitimate
non-discriminatory reasons for its actions. In reaching this conclusion,
we note that with regard to issue (1), the record supports the agency's
position that on May 22, 2002, Person A asked complainant to do the
CFS mail due to the unavailability of the other clerks, including the
clerk who usually performed ths function. With regard to issue (2), the
record contains an affidavit from a Human Resource Specialist stating
that complainant's position and the position of four other employees
were abolished in connection with operational reviews and that he became
an unassigned regular per the union agreement. We note that on appeal,
complainant does not challenge the definition of the issues set forth
in the agency's final decision. Upon review of the record, we find
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination.
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 decision.
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
June 9, 2005
__________________
Date