01A14171
09-18-2002
Charles Varecha, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles Varecha v. United States Postal Service
01A14171
September 18, 2002
.
Charles Varecha,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14171
Agency No. 1-J-609-0021-00
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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 Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Maintenance Mechanic at the agency's Chicago Bulk Mail
Center, in Forest Park, Illinois. Complainant sought EEO counseling and
subsequently filed a formal complaint on April 28, 2000, alleging that
he was discriminated against on the bases of disability (bad left knee)
and age (D.O.B. March 3, 1937) when:
(1) on November 7, 1999, complainant was sent home after one hour;
in November, 1999, complainant was removed as a Safety Captain;
in November and/or December, 1999, complainant was stalked by his
supervisor;
in January and/or February, 2000, complainant was deprived of 8 hours
of pay and not permitted to take lunch break outside of his work area;
on March 30, 2000, complainant became aware that he was charged with
8 hours of AWOL for March 16, 2000; and
on April 27, 2000, complainant could not climb the stairs to watch a
training movie and he was put off the clock.
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.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of age and/or disability discrimination. Specifically,
the agency concluded that complainant failed to establish that age
was the determinative factor in the aforementioned instances of alleged
discrimination. The agency also concluded that there is no documentation
in the file that indicates that complainant suffers from a permanent
condition, and that complainant was not covered by the provisions of
the Rehabilitation Act.
The agency further concluded that assuming arguendo that complainant had
met his prima facie case, the agency articulated a legitimate, facially
nondiscriminatory explanations for its actions. Specifically, the agency
stated that complainant's medical documentation did not cover him for
November 7, 1999. The agency alleged that complainant had approved
annual leave on November 7, 1999, for 6.97 hours. The agency alleged
that complainant's Safety Captain job was given to another employees,
when complainant's medical restrictions prevented him from performing
his job in the maintenance department. The agency also argued that the
payroll records indicate that complainant received 8 hours of pay for
every Sunday in January and February, 2000.
The agency concluded that complainant was allowed to take his break and
lunch outside of the First Aid office in January and February, 2000.
The agency noted that complainant called management every day and
management had a mechanic pick complainant up and transport him to
the break or lunchroom because he was on crutches during that period.
The agency stated that on March 16, 2000, complainant called in for 8
hours of sick leave due to an injury-on-duty which had occurred on January
13, 2000. The agency noted that complainant's leave was disapproved
by the injury compensation unit because he did not complete the proper
forms and he was marked AWOL. The agency alleged that complainant was
instructed to view a training movie on April 27, 2000, and complainant
refused to do it, because he alleged that he could not climb the stairs.
However, the agency alleged that the record reveals that complainant
had restrictions to climb stairs between May 1, 2000 and June 1, 2000.
Therefore, the agency concluded that complainant had no limitations as
of April 27, 2000.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
As a general matter, in the absence of direct evidence of discrimination,
claims of discrimination alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this analytical framework,
the complainant 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 reason was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s). Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that
the agency's reason was pretextual--that is, it was not the true reason,
or the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253. However, the ultimate burden of persuading the trier
of fact that the agency intentionally discriminated against complainant
remains at all times with complainant. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).
Even assuming arguendo that complainant established prima facie case
of discrimination on the basis of age and/or disability, we conclude
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the record reveals that on November 7, 1999,
management instructed complainant to change the drive roller chain on
the PSM machine, complainant told management it was against his medical
restrictions, but, complainant's medical statement only covered him until
November 5, 1999. The record also reveals that complainant volunteered
for the Safety Captain position in the Maintenance Department, but
when complainant's medical statement restricted his ability to perform
his job in the Maintenance Department, he was detailed to the Mail
processing Unit. Regarding complainant's claim that he was stalked by
his supervisor in November and/or December 1999, the record reveals
that on one day complainant was only given 3 hours of work, and that
his supervisor had other assignments to issue him. The record reveals
complainant's supervisor went into the lunchroom to give him the rest of
his assignment for the day, and that gave him his total of 8 hours for
the day. Regarding claim (4), the clock rings show that complainant was
paid for every Sunday, in January and February. The record also show that
during November and/or December, complainant was on crutches, and that
the Chicago Bulk Mail Center policy did not permit any employee to take
a break on the workroom floor while using crutches, for safety reasons.
However, the record shows that every day complainant would call the
Central Control room and his supervisor would dispatch a mechanic on
call to pick him up and transport him to either the break area or the
lunch room. The record reveals that complainant would call at least
twice a day to be picked up for his breaks and lunch.
The agency alleged that complainant called on March 16, 2000, for 8 hours
of sick leave and that, when he returned to work he stated in his PS
Form 3971, that complications from the injury which occurred on January
13, 2000 caused his absence. The record reveals that complainant was
notified that he was not eligible for sick leave due to an on-the-job
injury because he had not filed the proper form, the CA2-A, and that
he was charged with AWOL. Finally, the record reveals that there were
no records on complainant's file for any medical restrictions on April
27, 2000.
Where the agency has articulated legitimate, nondiscriminatory reasons
for the personnel actions at issue, the factual inquiry can proceed
directly to the third step of the McDonnell Douglas analysis. Chouteau
v. United States Postal Serv., EEOC Appeal No. 01973853 (Mar. 10, 2000).
Accordingly, we next examine whether complainant has presented sufficient
evidence to prove the agency's reasons are merely pretext for unlawful
discrimination. We find that complainant failed to show pretext.
Complainant did not rebut the agency's reason for its action. For
example, regarding claim (1), complainant merely argues that management
instructed him to perform duties against his medical restrictions but did
not rebut that his medical restrictions only covered him until November
5, 1999. Complainant also failed to show that he was not paid for a
specific Sunday, and he did not rebut that the clock ring records show
that he was paid for every Sunday during November and/or December.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, 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
September 18, 2002
__________________
Date