0320090081
10-22-2009
Andre R. Kabir, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andre R. Kabir,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090081
MSPB No. CH0752080640I1
DECISION
INTRODUCTION
On July 8, 2009, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
ISSUE PRESENTED
The issue presented herein is whether the MSPB properly determined that
petitioner was not discriminated against on the bases of race (Black),
disability (major depression), and reprisal for prior protected activity
under Title VII when, effective June 7, 2008, petitioner was removed
from service from the agency.
BACKGROUND
Petitioner was a Supervisor in Automation at the agency's Processing
and Distribution Center in Columbus, Ohio. By letter dated February 20
2008, agency management proposed petitioner's removal for unsatisfactory
attendance. The letter indicated that petitioner had a period of Absence
Without Official Leave (AWOL) beginning in December 2007 and continuing
through February 1, 2008. There is undisputed evidence of record that
supports the agency's assertion of petitioner's absence from work for
this period and that he did not have approved leave. The proposed
removal letter also noted that petitioner had been disciplined in
the past for unsatisfactory attendance, including a proposed letter
of warning in lieu of a 14-day suspension in December 2007, a proposed
letter of warning in lieu of a 7-day suspension in July 2006, and letter
of warning in May 2006. Finally, the letter noted petitioner's role as a
supervisor made him key to the daily operations of the agency's facility.1
Petitioner was removed from his position effective June 7, 2008.
On June 26, 2008, petitioner filed a mixed case appeal with the MSPB
concerning his removal alleging it was the result of discrimination on
the bases of race (Black), disability and reprisal for prior protected
activity. A hearing was held and thereafter, on November 14, 2008,
a MSPB Administrative Judge (AJ) issued an initial decision finding no
discrimination. Petitioner requested reconsideration of this decision
by the full Board and, on June 11, 2009, the MSPB denied his petition
for review. The instant appeal to this Commission followed.
The record establishes that in May 2007, petitioner submitted a
request for leave pursuant to the Family and Medical Leave Act (FMLA).
In support of his request, he provided the agency with a letter from his
psychologist (Psychologist 1). In the letter, Psychologist 1 diagnosed
petitioner with severe depression, insomnia, fatigue and loss of ability
to concentrate.2 Psychologist 1 wrote that he expected the condition
to last "at least 6 weeks." The agency approved petitioner's request
for FMLA leave effective May 10, 2007 through July 10, 2007.
By letter dated August 6, 2007, Psychologist 1 informed the agency
that petitioner was still unable to return to work, but did not give
a prognosis as to when he could return. Petitioner's FMLA leave was
exhausted in September 2007, and management granted petitioner Leave
Without Pay (LWOP) from September to December 2007.
On August 29, 2007, petitioner, still out of work, requested a lateral
reassignment from the agency's facility in Columbus, Ohio, to a facility
in Chicago, Illinois. Petitioner indicated in his request that he has
been "met with considerable extenuating circumstances far beyond [his]
control from 2005 til now and would like to return as-soon-as possible
to ...Chicago." Petitioner did not indicate that his medical condition
was the reason for this request.
By letter dated November 7, 2007, Psychologist 1 sent an update to
the agency indicating that petitioner could not return to work until
March 5, 2008, at which time he could work for four hours per day,
working up to full-time after a few weeks. He further indicated that a
reassignment to another facility "would probably hasten his return to
work date." Also on November 7, 2007, petitioner submitted a request
for additional LWOP running from December 1, 2007 until March 5, 2008.
Petitioner's supervisor testified that she met with petitioner on November
7, 2007, to discuss his request for additional LWOP, and then she told
him that she was denying his request because he was needed on the job.
The supervisor stated that she told petitioner that all future absences
would be recorded as AWOL and could result in disciplinary action.
On December 21, 2007, when petitioner had still not returned to work,
agency management proposed a letter of warning in lieu of a 14-day
suspension for Unsatisfactory Attendance. However, petitioner still
did not return to work.
On February 13, 2008, petitioner provided the agency with another
letter from Psychologist 1 extending his medical leave until May 7, 2008
(for four hours per day) with an expected full-time return to duty on
May 21, 2008. Again, the Psychologist indicated that a reassignment
to another location would probably hasten petitioner's return to work.
By this point, petitioner had been absent from work from May 10, 2007
through February 20, 2008, and the agency issued its Notice of Proposed
Removal for unsatisfactory attendance.
Also on February 20, 2008, petitioner's new psychiatrist (Psychiatrist
2) provided a letter in which he concurred with the Psychologist 1's
recommendation for a transfer, and noted that petitioner was not medically
cleared to return to work at that time.
By letter dated May 12, 2008, Psychologist 1 indicated that petitioner
might be able to return to work within the next 60 days if he was
reassigned to a new location. At this point, the agency determined to
that petitioner should be removed from service and issued its notice of
proposed removal, which eventually became effective on June 7, 2008.
Four months after he was removed from his position, petitioner was
cleared to return to work in October 2008 by both the Psychologist 1
and Psychiatrist 2.
MSPB DECISIONS
The MSPB AJ affirmed the agency's decision to remove petitioner from
his position, noting that both petitioner and the agency stipulated
to the fact that petitioner had been absent from work for over a year.
The Plant Manager testified that the agency could not keep using temporary
supervisors in petitioner's place due to overtime costs and the lack of
efficiency and continuity in the unit due to petitioner's absence.
To the extent petitioner alleged disability-based discrimination, the
MSPB AJ found that, even assuming petitioner had "properly notified the
Agency of a disability and properly requested accommodation," petitioner
was not a "qualified" individual with a disability in that his doctors
certified that he could not perform the duties of his position with or
without reasonable accommodation from May 2007 through May 2008. As such,
the MSPB AJ found that petitioner failed to show that the agency violated
the Rehabilitation Act.3
The MSPB AJ turned to petitioner's claim of race-based discrimination.
Here, the MSPB AJ noted that petitioner alleged that white employees
were permitted to work a part-time schedule. The MSPB AJ was not
persuaded by petitioner's argument noting that the comparators named
by petitioner were given the four-hour shift pursuant to a workers'
compensation claims with the Office of Workers Compensation Programs
(OWCP). Further, the MSPB AJ indicated petitioner never requested a
part-time or shortened schedule. As such, the MSPB AJ determined that
petitioner did not establish race-based discrimination.
Finally, the MSPB AJ determined that petitioner failed to establish his
claim of unlawful retaliation. The MSPB AJ found that petitioner had
been absent for one year and there was no prognosis that he would ever be
able to return to work. As such, the MSPB AJ concluded that the agency
did not remove petitioner in retaliation for his protected activity.
Petitioner filed a petition for review to the full Board. On June 11,
2009, the Board issued its Final Order denied the petition finding no
error of law nor new, previously unavailable evidence.
PETITION FOR REVIEW
On July 8, 2009, petitioner filed this instant petition. He indicated
that he had requested reasonable accommodation in the form of a
reassignment to a facility in Chicago, Illinois, or a four-hour part-time
schedule, but these requests were denied. Further, petitioner argues
that he has provided evidence that the agency's actions were because of
his race and/or prior EEO activity.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Denial of Reasonable Accommodation
To bring a claim of disability discrimination, petitioner must first
establish that he is disabled within the meaning of the Rehabilitation
Act. An individual with a disability is one who has, has a record of, or
is regarded as having a physical or mental impairment that substantially
limits one or more of his major life activities. 29 C.F.R. � 1630.2(g).
For the purposes of analysis, we assume petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1).
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
Petitioner also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m).
Part-time Schedule
Petitioner argues that he could have returned to work in the Columbus
facility if he had been permitted to work a four-hour work-day.
In November 2007, Psychologist 1 indicated to the agency that petitioner
could return to work on March 5, 2008, in a part-time schedule. However
by letter dated February 13, 2008, Psychologist 1 changed petitioner's
expected part-time return date to May 7, 2008. At this point, the agency
issued its February 20, 2008 notice of proposed removal. Then, on May
7, 2008, the Psychologist indicated that petitioner could not return
for 60 more days. Petitioner was finally cleared for duty by both the
Psychologist and Psychiatrist 2 in October 2008, four months after his
removal was effective. Therefore, while petitioner may have believed
he could return to work prior to May 2008 on a part-time schedule,
the medical documentation and testimony from the Psychologist 1 do
not support petitioner's belief. We find that the medical evidence
contradicted petitioner's claim that he could have returned to work
with an accommodation in the form of a part-time schedule. Therefore,
we find that petitioner would not have been qualified even if he was
provided with a part-time schedule.4
Reassignment to Another Location
We note that the discussion of "qualified" does not end at petitioner's
current position. The term "qualified individual with a disability,"
with respect to employment, is defined as a disabled person who, with or
without a reasonable accommodation, can perform the essential functions of
the position held or desired. 29 C.F.R. � 1630.2(m). The term "position"
is not limited to the position held by the employee, but also includes
positions that the employee could have held as a result of reassignment.
The record establishes that in late August 2007, petitioner requested
a lateral reassignment from the agency's facility in Columbus, Ohio,
to a facility in Chicago, Illinois, where he had previously worked.
Petitioner did not indicate that his medical condition was the reason
for this request and did not provide any medical justification for his
request at the time he made it. Therefore, the Plant Manager testified
that, without a connection between his request for reassignment and
his medical condition, she did not refer petitioner's request to the
district's Reasonable Accommodation Committee for consideration as
an accommodation. The Commission has stated that an "individual or
his/her representative must let the employer know that he or she needs an
adjustment or change at work for a reason related to a medical condition."
EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (hereinafter referred to as
"Reasonable Accommodation Guidance"), Notice No. 915.002 (revised October
17, 2002), at 8, Question 1. Based on the evidence of record, we conclude
that at the time he made the August 2007 request, petitioner did not make
the agency aware that he was requesting a reasonable accommodation.
We do note that in mid-November 2007, and in a subsequent letter,
petitioner's psychologist wrote the agency stating that complainant
was still medically unable to return to work and indicating that a
reassignment to another facility "might" hasten his return. However,
in order to be considered for reassignment as a reasonable
accommodation, an employee must also be "qualified" for the proposed
new position. Reasonable Accommodation Guidance at 38. In this case,
petitioner was requesting a lateral reassignment - in essence to perform
the same job in another location. However, his psychologist's vague
assertion that moving to another facility might hasten his return to
work, without more, was insufficient to establish that petitioner would
be qualified to work in another location in light of the functional
limitations of his claimed disability (totally unable to work).5
Therefore, there was nothing to suggest that a reassignment would be an
effective accommodation. Moreover, it appears that what petitioner was
really requesting was a change in his supervisory chain. The Commission
has held that an employer does not have to provide an employee with a
new supervisor as a reasonable accommodation. Reasonable Accommodation
Guidance at 46, Question 33.
Discrimination Based on Race and Prior Protected Activity
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For petitioner 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 petitioner 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 petitioner 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).
Agency provided legitimate, non-discriminatory reasons for the removal
action, namely that petitioner was absent from work from May 2007
through June 2008, albeit because of a medical condition, and the
continued use of temporary supervisors to cover petitioner's position
was driving up overtime costs and lowering the efficiency of the unit.
Petitioner has not shown that the agency's reasons were pretext for
discrimination based on his race or his prior EEO activity. As such,
we find that petitioner has not shown that the agency's removal action
constituted discrimination.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the
Commission to concur with the final decision of the MSPB finding no
discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
October 22, 2009
__________________
Date
1 Management witnesses testified that they were using temporary
supervisors to cover petitioner's position which drove up overtime costs
and lowered the efficiency of the unit.
2 Petitioner stated that he believed his medical condition was the
result of work-related stress caused by his management.
3 Based on his analysis, the MSPB AJ determined that he did not have to
reach the issue of whether the agency was obligated to grant petitioner's
request for an out-of-state transfer.
4 The Commission notes that the MSPB AJ's decision may be read to imply
that only employees with accepted OWCP claims are entitled to work
shortened shifts. However, an agency is required to make reasonable
accommodation to the known physical and mental limitations of an
otherwise qualified individual with a disability unless the agency
can show that accommodation would cause an undue hardship. Therefore,
absent undue hardship, the a shortened work schedule may be a reasonable
accommodation that an agency is required to provide regardless of any
OWCP claim or lack thereof. However, in the instant case, the agency
was not obligated to provide such an accommodation.
5 We note, for example, that in his May 12, 2008 letter to the agency,
Psychologist 1 indicated that petitioner could not return to work,
even if reassigned, for at least 60 more days.
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0320090081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090081