01983881
10-13-2000
Allan C. Solseth, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Allan C. Solseth v. United States Postal Service
01983881
10-13-00
.
Allan C. Solseth,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01983881
Agency No. 4I-553-1105-95
DECISION
On April 14, 1998, Allan C. Solseth (hereinafter referred to
as complainant) filed a timely appeal from the March 11, 1998, final
decision of the United States Postal Service (hereinafter referred to as
the agency) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The appeal is timely filed (see 29 C.F.R. �
1614.402(a))<1> and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of disability (back condition) and sex with regard to
his job assignment.
Complainant contacted an EEO counselor on September 8, 1995, and filed
his formal complaint on October 14, 1995. Following an investigation,
the agency advised complainant of his right to a hearing before
an EEOC Administrative Judge or an immediate final agency decision
(FAD). Complainant elected to receive a FAD, and the agency found no
discrimination.
Complainant was a full-time City Carrier until November 1987, when he
experienced an on-the-job injury to his back. His claim was accepted by
the Office of Workers' Compensation Programs (OWCP), Department of Labor,
and he received wage compensation and vocational retraining in keyboarding
and computer usage. In March 1994, the agency, having determined that
he was unable to perform the duties of his carrier position, offered him
reemployment to a modified clerk position working night hours (Tour 1),
which had been approved by OWCP and his physician. A grievance filed
by the clerks' union<2> delayed his assignment until 1995, when he began
employment as a Manual Distribution Clerk on Tour 1.
Letters and reports in the record from medical personnel attest to
complainant's medical condition and physical restrictions. In a letter
dated January 10, 1995, summarizing his findings, an orthopedic physician
(Dr. S) described complainant's condition as "chronic back pain" and
indicated that he would always be subject to some medical restrictions.
According to a functional assessment by a physical therapist, performed in
mid-1992 at the direction of another physician (Dr. M), complainant may
work eight hours per day but is restricted to minimal bending/stooping,
crouching, and twisting, occasional squatting, standing for no more than
25 minutes, no lifting above the shoulder, infrequent carrying or lifting
at waist level up to 20 pounds, use of his right foot occasionally and
his left foot frequently for repetitive movement, and may push/pull
between 22 and 28.5 pounds. In a letter dated October 7, 1992, Dr. M
stated that complainant "is not going to ever be able to return to his
work activities as a mail carrier."
According to complainant, on August 19, 1995, he learned that a female
rural letter carrier (E1) had been assigned temporarily to a limited
duty carrier position with daytime hours pending her recovery from an
on-the-job injury. The agency explained that complainant was assigned to
the clerk position because the medical and functional limitations imposed
by his physicians excluded him from other positions, including a carrier
position. The agency further explained that complainant was not assigned
daytime hours because a more senior clerk occupied the position on the day
shift (white, male) (E2), and there was no need for a second clerk.<3>
In his appeal, complainant contended that E1 was given preferential
treatment and argued that a day job should have been created for him.
He stated that he had had no choice but to accept the agency's job
offer or he would have lost his compensation. He also argues that he is
similarly situated to E1, in that, prior to his injury, he had worked as a
mail carrier and had been assigned to the supervisor that supervised E1.
Complainant acknowledged that E1 had returned to her full duties but
stated that she later had carpal tunnel surgery, after which she again
returned to her full duties.
By his complaint, complainant seeks assignment to daytime hours
and a return to the carrier craft with appropriate adjustments for
his condition. Complainant has alleged disparate treatment based
on disability and sex when he was not assigned to the day shift and
compares himself to E1. Where a complainant alleges discrimination
based on disability, we must initially ascertain whether s/he is a person
with a disability entitled to the protection of the Rehabilitation Act.
A person claiming discrimination based on disability must show that s/he
is a qualified person with a disability. A person with a disability is
defined as one who has, has a record of having, or is regarded as having
an impairment that substantially limits one or more major life activities.
29 C.F.R. �1630.2(g).<4> Major life activities include caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. �1630.2(i). A qualified
individual with a disability is one "who, with or without reasonable
accommodation, can perform the essential functions of the position."
29 C.F.R. �1630.2(m). The agency does not dispute that complainant
is a qualified person with a disability. We now consider his claim of
disparate treatment based on disability and sex.
Claims alleging disparate treatment are generally examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th
Cir. 1981). First, a complainant must 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). Next, the agency offers rebuttal
to complainant's inference of discrimination by articulating a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); see U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Once the
agency has stated the reasons for its action, the burden returns to the
complainant, who must persuade the fact finder by a preponderance of
the evidence that the reasons offered by the agency were not the true
reasons for its actions but rather were a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Following this established order of analysis, above, is not always
necessary where the record is fully developed and the agency has
articulated an explanation for its actions. In that case, the factual
inquiry may proceed directly to the third step of the McDonnell Douglas
analysis--the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated by
discrimination. U.S. Postal Service Board of Governors v. Aikens, 460
U.S. at 713-14. We find that the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, the agency
stated that a more senior employee occupies the clerk's position on the
day shift, and there is not enough work for an additional clerk. Also,
complainant was assigned to the clerk position because of the physical
and medical restrictions imposed by his doctors.
The burden now returns to complainant to demonstrate that the agency's
reasons were not its true reasons for its action but were a prextext
for discrimination, e.g., the agency's reasons were based on prohibited
considerations of disability and sex. Complainant has not presented
any evidence to show that the agency's explanations were not true or
based on discriminatory considerations or animus. Although complainant
compares himself to E1, she is not an appropriate comparison, since she
has different limitations and job duties. We find therefore that the
agency did not engage in disparate treatment based on sex or disability
when complainant was assigned to a position on the Tour 1.
To the extent that complainant may contend that the agency did not
provide him a reasonable accommodation because he did not receive the
reasonable accommodation of his choice, that is, to a position with
daytime hours and/or a modified carrier position, we find that the
agency has afforded complainant a reasonable accommodation. Under the
Commission's regulations, an agency is required to reasonably accommodate
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. 29 C.F.R. � 1630.2(p); see, generally, EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, No 915.002 (Guidance) (March
1, 1999). The Guidance specifically states that a complainant is not
entitled to an accommodations of his choice. pp. 17-18; also see 29
C.F.R. Part 1630 app. � 1630.9 (1997). The Commission finds that the
agency provided complainant reasonable, effective accommodation when he
was assigned to the limited duty clerk job.
Although complainant has asserted that, with a pushcart, he could
perform the carrier position, he has not put forth any evidence or
testimony asserting that he can perform all of the essential duties of
the carrier position with or without reasonable accommodation. Moreover,
the record shows that Dr. M restricted him from doing so, and he has not
shown otherwise. We find therefore that the agency provided complainant
a reasonable accommodation when he was assigned to the clerk position.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
Frances M. Hart
Executive Officer
Executive Secretariat
__10-13-00_________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The union representing the agency's clerks objected to assignment
of a former carrier (from a different union) to a clerk position.
The grievance resolution provided for complainant's assignment to the
position but junior to others in the craft.
3According to the record, E2 had carpal tunnel syndrome and, in January
1990, was assigned to his current clerk position. The assignment
was renewed in October 1995, when his doctor reaffirmed his medical
restrictions.
4The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website:
www.eeoc.gov.