Charles F. Varecha, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionApr 28, 2004
01A31431 (E.E.O.C. Apr. 28, 2004)

01A31431

04-28-2004

Charles F. Varecha, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Charles F. Varecha v. United States Postal Service

01A31431

April 28, 2004

.

Charles F. Varecha,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 01A31431

Agency No. 1J-609-1085-95

Hearing No. 230-A0-5311X

DECISION

Complainant timely initiated an appeal from the agency's final

decision concerning his equal employment opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

The record reveals that complainant, a Maintenance Mechanic, PS-07,

at the Chicago Bulk Mail Center, in Forest Park, Illinois, filed a

formal EEO complaint on December 26, 1996, alleging that the agency had

discriminated against him on the basis of his disability when:

(1) his light duty assignment was terminated on April 28, 1995;

his bid for a change of tour was not honored; and

postal management postponed the processing of his claim for compensation

on account of traumatic injury or occupational disease.

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. The agency

subsequently issued a final decision (FAD), asserting that it did not

receive a timely response from complainant. Complainant then appealed

the FAD to the Commission, contending that he had made a timely hearing

request. In EEOC Appeal No. 01984187, Varecha v. United States Postal

Service (March 17, 2000), we vacated the agency's final decision, and

remanded the complaint for a hearing. Subsequently, on September 25,

2002, complainant withdrew his request for a hearing, and the case

was returned to the agency for issuance of a FAD. The FAD found that

complainant failed to establish that any of the challenged actions were

motivated by discriminatory animus. On appeal, complainant asserts

that he has new evidence that he would like to be considered by the

Commission . The agency requests that we affirm the FAD.

As an initial matter we note that complainant has not actually submitted

any new evidence in support of his appeal. Complainant simply explains

on appeal that he has such evidence available now. He also fails

to explain whether or why this evidence was unavailable before now.

We cannot consider new evidence at this stage in the process. As this is

an appeal from a FAD issued without a hearing, pursuant to 29 C.F.R. �

1614.110(b), the agency's decision is subject to de novo review by the

Commission. 29 C.F.R. � 1614.405(a).

Disparate Treatment

We will first apply a disparate treatment analysis to all three issues.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

He must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming arguendo complainant is an individual with a disability pursuant

to the Rehabilitation Act, we find that the agency has articulated

legitimate, nondiscriminatory reasons for its actions. We further find

that complainant has not established by a preponderance of the evidence

that the agency's reasons are pretext for disability-based discrimination.

Reasonable Accommodation

To the extent that complainant contends that the termination of his

light duty assignment constituted an unlawful denial of a reasonable

accommodation under the Rehabilitation Act, we note that an agency

is required to make reasonable accommodation to 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(o) and (p). Here, the record contains

evidence that prior to April 1995, the agency had provided complainant

with light duty assignments relating to his carpal tunnel syndrome.

When complainant returned to duty after surgery, on or about April 28,

1995, he was given a light duty assignment and reasonable accommodations

in the Preventative Maintenance Unit, in accordance with his medical

restrictions. The record indicates that complainant was not pleased

with this assignment because he preferred to work in the Maintenance

Control Office. Despite complainant's displeasure with that assignment,

he has not established that the assignment to the Preventative Maintenance

Unit was an ineffective accommodation for him. A medical statement dated

May 22, 1995, from complainant's physician indicates that complainant

could resume normal duties without limitations beginning May 28, 1995.

See Report of Investigation at Exhibit 11. Considering all of the above,

we conclude that complainant has not established that the agency failed

to provide him with reasonable accommodation.

After a careful review of the record, including all statements submitted

on appeal, we find no violation of the Rehabilitation Act, and therefore,

we AFFIRM the FAD.

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

April 28, 2004

__________________

Date