0120142295
10-30-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142295
Hearing No. 430-2013-00053X
Agency No. 4C-250-0030-12
DECISION
On May 22, 2014, Complainant filed an appeal from the Agency's April 15, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-time Flexible Distribution Window Clerk at the Agency's Post Office in Troutville, Virginia.
On June 13, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (back injury on April 12, 2012), age (48), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. Since January 2012, he has not been provided equitable work hours and assignments
2. On May 5, 2012, he was issued a Letter of Warning for Unsatisfactory Performance and Improper Conduct
3. On May 9, 22 and 25, 2012, he was assigned to perform work beyond his medical restrictions
4. On April 25, 2012 he was given a PDI (Pre-Disciplinary Interview) regarding his performance and told to use his cell phone and do personal packing on his own time.
The matter was investigated. The record indicated that Complainant was provided with a request for an affidavit in support of his compliant of discrimination. His attorney (Attorney) emailed the investigator (Investigator) requesting a 14 day extension to respond. The Investigator noted in the Investigative Summary that Complainant failed to provide his affidavit.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
Before the AJ, Complainant with drew Claim (4). Complainant provided the AJ with a copy of his affidavit dated May 14, 2013. There is no explanation given by Complainant or the Attorney for his failure to submit the affidavit during the investigation of the complaint. It should be noted that the Postmaster who was Complainant's supervisor during the relevant time period, was deposed on May 16, 2013. In July 2013, the Agency moved for a decision without a hearing.
On March 10, 2014, Complainant informed the AJ of his withdrawal of his hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed without specific comment.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment (Claims 1 and 2)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant 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 Ctr. 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 Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. With respect to claim (1), the Postmaster averred that Complainant's work assignments were based on the needs of the workplace and Complainant's assignments. The Postmaster noted that it was not wise to turn the office over to Complainant because of his attendance issues. He also stated that Complainant has a history of not following instructions and he asked Complainant how he could trust him to be on higher level to cover the Postmaster position if he was unable to follow instructions. As for claim (2), the Postmaster averred Complainant was issued the letter of warning for improper conduct; failure to follow instructions to timely report an accident that Complainant was involved in; and for failure to follow Postal regulations on lifting. He indicated that on April 12, 2012, Complainant injured himself lifting a garbage bin. The Postmaster noted that the Agency's policy is that employees must report all accidents immediately as they occur. He stated that Complainant waited 17 hours before reporting the incident. Based on our review of the record, we find that the Postmaster has provided legitimate, nondiscriminatory reasons for his actions.
As such, we turn to Complainant to establish that the Agency's reasons were pretext for unlawful discrimination. We find that Complainant has failed to do so. Therefore, we find that the Agency's final decision properly concluded that Complainant did not show that the events in claims (1) and (2) constituted unlawful discrimination.
Reasonable Accommodation (Claim 3)
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. Again for purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Complainant alleged that following the injury on April 12, 2012, he returned to work with medical restrictions. Specifically, Complainant was limited to lifting between 10 and 15 pounds and bending three to four times. Complainant alleged that the Postmaster assigned him work outside of these restrictions on May 9, 22, and 25, 2012. Complainant averred that he was required to lift items that weighed 30 pounds and engaged in bending exceeding his limitation of three to four times a day. The Postmaster denied requiring Complainant to work outside of his physical limitations.
As noted above, the Investigator requested that Complainant provide an affidavit to support his discrimination claims. The request was made by mail in August 2012. The Attorney stated that he required a 14 day extension. The Attorney made the request by email dated August 21, 2012. Complainant provided an affidavit dated May 14, 2013, to the AJ, almost a year after the events occurred. The Postmaster provided an affidavit to the Investigator on August 28, 2012. The Postmaster also appeared for a deposition before the AJ on May 16, 2013.
We also note that there is evidence in the record questioning Complainant's medical limitations. The record included a copy of an investigation from August 13, 2012. Complainant's treating physician certified that after viewing videotape of Complainant engaging in activities in non-work settings, he concluded that Complainant misrepresented his medical condition and physical capabilities to him during examinations. The same videotape was shown to Complainant's physical therapist who came to the same conclusion. She found that Complainant misrepresented his medical condition and physical capabilities to her.
Based on the evidence in the record, we find that Complainant has not proven that the Agency required him to work outside of his medical limitations. We note that the record includes assignments for May 9 and May 22 which provide Complainant with duties within his limitations. Further, we cannot ignore the evidence questioning the bases of Complainant's medical limitations. In addition, Complainant failed to provide an affidavit within months of the events at issue. Instead, he provided an affidavit a year after the events occurred. As such, we cannot find that the Agency's action constituted a violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 30, 2014
__________________
Date
2
0120142295
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142295