0320100032
06-17-2010
Dennis W. Simpson, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Dennis W. Simpson,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Petition No. 0320100032
MSPB No. SF0752090479I1
DECISION
On April 10, 2010, Petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of the events at issue, Petitioner was employed by the
Agency as a Sales Service Distribution Clerk. Petitioner alleged that
he was discriminated against on the bases of disability (high blood
pressure, back problems, sleep apnea, carpal tunnel syndrome, depression
and anxiety) and reprisal for prior protected EEO activity when he was
constructively suspended and, effective March 8, 2009, removed from his
position for being in leave without pay status in excess of one year.
The record indicated that Petitioner's last day at work was December 12,
2006. On December 13, 2006, Petitioner was placed by his physician on
total temporary disability through January 2009. The record showed that
Petitioner had several medical conditions, some caused by on-the-job
injuries, including high blood pressure, back problems, sleep apnea,
carpal tunnel syndrome, depression and anxiety.
Petitioner's medical limitations varied at the time in question, but
remained significant. For example, in December 2007, Petitioner's lifting
limitation fluctuated from no lifting more than five pounds, standing
only five to ten minutes per hour, and no interaction with customers
by telephone. By January 2009, Petitioner was limited in lifting ten to
fifteen pounds; sitting for thirty to forty minutes for six hours per day;
and fifteen to twenty minutes of standing up to six hours per day.
Petitioner continued to request to return to work. The Agency responded
with requests for medical clearances. Petitioner asserted that he
provided the Agency with the clearances. The Agency argued that
Petitioner failed to comply with their requests. The record showed
that the Resource Manager reviewed the medical documents and found
complainant's records to be confusing for it contained documents which
contradicted themselves and had several different restrictions from his
different physicians. Based on the contradictions, the Resource Manager
sought clarification. When she did not get the clarifications requested,
the Resource Manager sent Petitioner for a fitness-for-duty examination.
Following Petitioner's fitness-for-duty exam given by an Agency physician,
a medical report was issued on October 3, 2008. The report reviewed
Petitioner's medical history and variety of conditions. The report noted
that Petitioner was taken off of work in December 2006 and was still not
ready to return to work. However, it was noted that Petitioner sought
to return to duty. The Agency physician found the situation confusing.
During this time, Petitioner requested to return to duty in November 2008.
On November 25, 2008, the Department of Labor determined that Petitioner's
limitations were too severe for the Agency to provide him with a job
offer. The record indicated that the Resource manager and Postmaster
looked for a position for Petitioner to perform. However, based on his
extensive limitations, the Agency was unable to accommodate Petitioner.
They noted that there was no vacant funded position that would allow
for Petitioner's five-pound lifting restriction.
On January 26, 2009, the Agency proposed Petitioner's separation from
employment for having been on leave without pay status for one year.
On March 6, 2009, the Agency issued its decision to remove Petitioner
effective March 9, 2009. The record indicated that the removal action
was held in abeyance pending a grievance Petitioner filed. During the
grievance process, Petitioner retired as of April 6, 2009.
Petitioner filed a mixed case complaint. Petitioner requested a hearing
before an EEOC Administrative Judge (EEOC AJ). The EEOC AJ dismissed
the matter asserting that the MSPB had jurisdiction over the complaint.
The matter was returned to the Agency.
The Agency issued a decision finding that Petitioner was not discriminated
against as alleged. Thereafter, Petitioner filed an appeal with the MSPB,
and a MSPB Administrative Judge (MSPB AJ) issued a decision finding that
the MSPB lacked jurisdiction over the constructive suspension claim.
The MSPB AJ also affirmed the Agency's removal action finding that it
did not violate the Rehabilitation Act.
Petitioner filed a petition for review by the full Board. The Board
issued an Opinion and Order on March 1, 2010, finding the Agency did
not violate the Rehabilitation Act when Petitioner was constructively
suspended. The Board noted that Petitioner's claim of constructive
suspension began on or about November 7, 2007, when his physician
returned Petitioner to work with limitations. Petitioner alleged that the
Agency failed to provide him with reasonable accommodation in the form
of work within his limitations. As a result, Petitioner alleged that
the Agency constructively suspended him until it removed him effective
March 8, 2009.
The Board determined that the Agency engaged with Petitioner to
determine the appropriate accommodations available for Petitioner.
However, the Board found that Petitioner was not responsive to the
Agency's requests for medical information. As a result, the Board
concluded that Petitioner failed to prove that he was denied a reasonable
accommodation. Accordingly, the Board also found that the Agency's
constructive suspension and removal action were not discriminatory.
As such, the Board upheld the Agency's actions.
PETITION FOR REVIEW
Petitioner filed a petition with the Commission to review the decision of
the MSPB. Petitioner argued that he provided the Agency with appropriate
medical clearances to allow him to return to work. However, despite
the clearances, Petitioner asserted that he was not permitted to return
to work. Therefore, Petitioner claimed that he was responsive to the
Agency's request for medical clarification. However, Petitioner argued
that it was the Agency that failed to allow him to return to work.
Petitioner asserted that there was a vacant funded position available
in the Lancaster Post Office, but it was given to another employee.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over
mixed case complaints on which the MSPB has issued a decision that
makes determinations on allegations of discrimination. 29 C.F.R. �
1614.303 et seq. The Commission must determine whether the decision of
the MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Denial of Reasonable Accommodation
To bring a claim of disability discrimination, Petitioner must first
establish that he is disabled within the meaning of the Rehabilitation
Act. An individual with a disability is one who has, has a record of, or
is regarded as having a physical or mental impairment that substantially
limits one or more of his major life activities. 29 C.F.R. � 1630.2(g).
For the purposes of analysis, we assume Petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1).
Upon review of the record, Petitioner essentially asserted that he was
denied a reasonable accommodation in the form of a position within his
limitations. As a result, Petitioner was constructively suspended and,
subsequently, removed by the Agency. 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. For the purposes of analysis,
we assume Petitioner is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
Petitioner also must show that he is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). We note that
the discussion of "qualified" does not end at complainant's position.
The term "qualified individual with a disability," with respect to
employment, is defined as a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position held or desired. 29 C.F.R. � 1630.2(m). The term "position"
is not limited to the position held by the employee, but also includes
positions that the employee could have held as a result of reassignment.
Therefore, in determining whether an employee is "qualified," an Agency
must look beyond the position which the employee presently encumbers.
Accordingly, the Agency should consider reassignment. EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans With Disabilities Act (Enforcement Guidance - Reasonable
Accommodation), No. 915.002 (revised October 17, 2002); see also
Interpretive Guidance on Title I of the Americans With Disabilities Act,
Appendix. to 29 C.F.R. Part 1630.2(o).
Upon review of the record, we find that Petitioner could not
perform the essential functions of his Sales Service Distribution
Clerk position during the relevant time period due to his medical
restrictions. Petitioner does not present evidence that during that time,
there was a vacant funded position for which he was qualified and to
which he could have been reassigned. We note that even on his petition
for review, Petitioner indicated that he contacted several Postmasters
at other Agency facilities. He stated that they did not have work
within his restriction. Petitioner asserted that a position became
vacant but was filled by another employee. We note that Petitioner has
provided no specific information or evidence to show that the essential
functions of the identified position could be performed within his
medical restrictions. Therefore, we find that the MSPB AJ correctly
determined that Petitioner did not established that he was a qualified
individual with a disability during the relevant time period and thus,
cannot establish a violation of the Rehabilitation Act.
Retaliation Claim
Petitioner also claimed that the constructive suspension and removal
action constituted unlawful retaliation. A claim of disparate treatment
based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For Petitioner to prevail, he 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 Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, the Petitioner 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
Center 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
Petitioner has shown by a preponderance of the evidence that the Agency's
actions were motivated by discrimination. United States Postal Service
Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez
v. Department of Transportation, EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the Agency has provided legitimate,
nondiscriminatory reasons for its actions. The Agency has shown that
Petitioner's last day of work was December 12, 2006. Petitioner was
in a leave without pay status in excess for one year. Therefore, the
Agency removed Petitioner. Petitioner has not shown that the Agency's
reasons were pretext for discrimination based on his prior EEO activity.
As such, we find that Petitioner has not shown that the Agency's removal
action constituted discrimination.
CONCLUSION
Based upon a thorough review of the record, it is the decision of
the Commission to CONCUR with the final decision of the MSPB finding
no discrimination. The Commission finds that the MSPB's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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
June 17, 2010
__________________
Date
2
0320100032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320100032