Charles Varecha, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A14171 (E.E.O.C. Sep. 18, 2002)

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