01a45958_01A45940_2draft
03-24-2006
Andrew L. Hayes and Torris H. Little, Sr., Complainants, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Andrew L. Hayes & Torris H. Little, Sr. v. United States Postal Service
01A45958 & 01A45940
March 24, 2006
.
Andrew L. Hayes and Torris H. Little, Sr.,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal Nos. 01A45958 & 01A45940
Agency Nos. 1D-401-0003-01 & 4D-400-0007-01
DECISION
Complainants filed timely appeals with this Commission from the
agency's decisions concerning their complaints of unlawful 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. In their complaints, complainants,
both Custodians, PS-03, at the agency's Louisville, Kentucky Post Office,
alleged that they were subjected to discrimination on the bases of race
(Black), sex (male), religion (Baptist/Methodist), disability (service
connected disability over 30%), and age (53<1>) when, on September 7,
2000, they were each told not to park on agency property with or without
a handicap parking permit.<2>
The facts herein are largely undisputed. In September 2000, the Customer
Service Manager (S1) at the Louisville Post Office Downtown Station
told complainants to move their cars out of the customer parking lot
after receiving customer complaints about the lack of parking spots.
The undisputed record shows that the only employees permitted to use this
lot were supervisors and three clerks who transported supplies to and from
the downtown facility to other facilities. The Final Agency Decision
(FAD) found insufficient evidence of pretext or discriminatory animus.
With respect to complainants' reasonable accommodation claim, the FAD
concluded that complainants failed to establish that their impairments
substantially limited a major life activity and that the complainants
failed to request a reasonable accommodation.
With respect to complainants' disparate treatment claims, we agree with
the agency and find insufficient evidence of pretext or discriminatory
animus. With respect to complainants' reasonable accommodation claims,
we assume, for the purposes of this decision, that both complainants are
individuals with disabilities, within the meaning of the Rehabilitation
Act. Nevertheless, we conclude that the complainants failed to present
sufficient evidence that a nexus existed between the purportedly requested
accommodation and complainants' disabilities.
With respect to complainant Andrew L. Hayes (hereinafter "Complainant
Hayes"), the record supports the following. On or before September 7,
2000, Complainant Hayes was adequately performing all of his work duties,
and had not requested any accommodation. On September 7, 2000, S1 asked
that all employees remove their cars from the customer parking lot.
Both S1 and Complainant Hayes agree that Complainant Hayes told S1
that he had a right to park in the customer lot because he has a service
connected disability and/or because he has a handicapped license plate.<3>
S1 did not make any additional attempt to determine if Complainant Hayes
was an individual with a disability because he knew that he had been
working well in a labor-intensive position without previously requesting
an accommodation. Complainant Hayes agrees that his position requires "a
lot of standing and walking" and that he did not need an accommodation to
perform any aspect of his job. In addition, Complainant Hayes testified
that an alternative parking lot was available for all employees but
would require him to walk approximately "30 to 40 feet" further than
the customer parking lot.
Assuming that Complainant Hayes requested a reasonable accommodation,
as required by the Rehabilitation Act, we find insufficient evidence
showing that parking 40 feet closer to the postal facility would address
any limitation imposed by his alleged disabilities. While Complainant
Hayes states that he has difficulty walking because of a back condition,
his medical records during the relevant time period (i.e., 2000 to
present) show that his doctor consistently recommended that he walk and
exercise more. Accordingly, we find insufficient evidence in the record
to support the finding that Complainant Hayes was unable or medically
restricted from walking an additional 40 feet on occasion.<4> As such,
he has not shown a nexus, or causal relationship between complainant's
disability and his desired accommodation. See Storman v. Department of
the Treasury, EEOC Request No. 05990112 (September 7, 2000).
The Commission also finds that complainant Torris H. Little, Sr. (herein
"Complainant Little") failed to present sufficient evidence that a nexus
existed between the requested accommodation and his disabilities which
he identifies as gastroesophageal reflux, sleep apnea, anxiety disorder,
benign prostatic hypertrophy, hypertension, sinus condition, residuals,
and post operative thyroglossal duct cyst.
With respect to Complainant Little, the record shows that on or before
September 7, 2000, he was adequately performing all of his work duties
without any difficulties and had not requested any accommodation. The
record shows that Complainant Little told S1 that he had a right to park
in the customer lot since, as a result of his disabled veteran status,
he had been issued a handicap license plate by the State of Kentucky.
Complainant Little stated during the EEO investigation that he would
like to be close to the building so he can relax in his vehicle if he
gets sick on his lunch break. He also stated that he would like to be
near his vehicle so that he can get his medication. However, there is no
letter or report from a medical provider recommending that he park his car
closer to the building. Moreover, Complainant Little never raised these
issues with S1. S1 did not make any additional attempt to determine
if Complainant Little was an individual with a disability because he
knew that he had been working well in a labor-intensive position without
previously requesting an accommodation. Complainant Little agrees that
his position requires "a lot of walking" and that he did not need an
accommodation to perform any aspect of his job.
Given the undisputed facts herein, we find that even assuming that
he requested a reasonable accommodation within the meaning of the
Rehabilitation Act, there is insufficient evidence to show that allowing
Complainant Little to park 40 feet closer to the postal facility would
have addressed any alleged limitation imposed by his disabilities.
We find insufficient evidence in the record to support the finding that
Complainant Little was unable or medically restricted from walking an
additional 40 feet on occasion.<5> As such, he has not shown a nexus,
or causal relationship between complainant's disability and his desired
accommodation. See Storman v. Department of the Treasury, EEOC Request
No. 05990112 (September 7, 2000).
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision with respect to both complainants because the preponderance
of the evidence of record does not establish that discrimination
occurred.<6>
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
March 24, 2006
__________________
Date
1 Both complainants were 53 at the time of the alleged discriminatory
action.
2 The Commission may, in its discretion, consolidate complaints filed
by two or more complainants consisting of substantially similar claims
or relating to the same matter. See 29 C.F.R. � 1614.606. Accordingly,
the Commission exercises its discretion to consolidate the cases herein.
3 The record shows that the State of Kentucky issues handicapped license
plates to all residents with a 30% or more service connected disability
rating.
4 Complainant Hayes did not work at this location every day.
5 Complainant Little did not work at this location every day.
6 Neither complainant submitted arguments on appeal.