01A40516
06-23-2006
Eugenio Urista, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Eugenio Urista,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01A40516
Hearing No. 350-AI-8382X
Agency No. 4E-870-0049-01
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant was a Distribution Clerk at
the agency's Las Cruces, New Mexico facility. Complainant filed a
formal EEO complaint on February 5, 2001, alleging that the agency
discriminated against him on the bases of national origin (Hispanic),
sex (male), age (born August 26, 1955), and disability (impairment:
hernia) when in December 2000, the agency failed to accommodate his
medical restrictions.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). On July 31, 2003, the AJ conducted
a telephonic hearing. Neither party objected to the AJ's decision to
hold the hearing via telephone. Three witnesses testified on behalf
of complainant, including complainant, and one witness testified on
behalf of the agency. Following the telephonic hearing, the AJ issued
a decision on September 17, 2003, finding no discrimination. The AJ
found that complainant was not an individual with a disability under the
Rehabilitation Act. The AJ concluded that complainant was not disabled
because he failed to show how his impairment substantially limited him
in a major life activity and was not qualified because it did not appear
that he could perform the essential functions of his position even with
accommodation. The AJ further concluded that assuming complainant is
in fact a qualified person with a disability, the preponderant evidence
show his disability was being effectively accommodated by the agency by
its offer of limited duty work, which complainant accepted.
The record reveals that complainant suffered an on-the-job injury on
June 10, 1999 while pushing a heavy load up a ramp into a transport
trailer. Complainant returned to work on June 14, 1999 with the limited
duty assignment of desk work but suffered a "traumatic injury" after
returning. Complainant's physician diagnosed complainant as having an
aggravated hernia. Complainant testified that he did not work from
November 1999 until June 2000 because of his medical condition but
returned to work in June 2000.
In hearing testimony, complainant stated that when he arrived to work on
December 21, 2000, his work station had been moved to a confined area
which violated his medical restrictions. Complainant stated that the
confined work station did not have enough room to allow him to process RTS
and mail, and the new configuration forced him to have to walk in order to
case mail. Complainant testified that at that time, he had restrictions
of "zero lifting . . . zero standing, zero walking, zero bending, zero
twisting, zero pushing/pulling." Complainant stated that a "floating"
supervisor who was not his assigned supervisor told him on December 21,
2000 that his work station had been moved. Complainant stated that he
told the supervisor, a Hispanic male born on August 21, 1946, that he
could not work at the new workstation because that would involve violating
his work restrictions on walking. He further stated that he presented his
work restrictions to the supervisor, but the supervisor did not accept the
restrictions as valid. Complainant testified that on December 22, 2000,
the supervisor told him to clock out because he could not work on the
floor with "zeros" on his work restriction documentation. Complainant
stated that on the same date, his supervisor granted a co-worker's
(non-Hispanic male, born May 21, 1949) request to work in a different area
so that he could work within his medical restrictions. Complainant stated
that he was not able to obtain an appointment with his physician until
December 27, 2000 and was out of work for five days after the incident.
Complainant returned to work with updated medical restrictions from
his physician on December 28, 2000 and was assigned work within his
restrictions on that date. Complainant also testified that pursuant to
a grievance, the agency paid him for the five days he was out of work.1
In an investigative affidavit,2 the supervisor stated that on December
21, 2000, he was not aware of complainant's impairment and restrictions
because he was not his immediate supervisor and had just been assigned
to different work hours. He stated that on December 21, 2000, he gave
complainant the option of walking two to three feet to case mail,
but complainant responded that this option was against his medical
restrictions. "When he gave me the copy of the CA-17, I noticed the
doctor had marked zeroes in the spaces for walking, lifting, twisting,
sitting, etc. without any type of explanation that I can remember.
I informed complainant that based on the number of hours he could perform,
namely 'zero,' it seemed that he could not do anything at all," he stated.
"I informed him that I would get with Injury Compensation to clarify the
CA-17 and to find out what I had to do. This was already past 1700 at
this time, and I informed Mr. Urista that I would get a hold of Injury
Compensation the next day," he further stated. The supervisor stated
that on December 22, 2000, the District Injury Compensation Office
advised him that "under no circumstances" should complainant work until
he provided the agency with an updated CA-17. He maintained that when
he relayed this information to complainant, complainant became angry
and proceeded to go to his physician. "I then informed him that he had
to clock out in that the appointment was not on the clock," he stated.
Regarding the comparative employee, he stated that the comparative
employee had a hearing impairment that required him to work away from
noisy machinery. The supervisor stated that when the comparative employee
complained, he allowed him to work in the Registry Case that day because
the employee assigned to the Cage did not show up for work on that
particular day. The supervisor stated that he required the comparative
employee to submit documentation stating that he could not work close
to machinery.
During the hearing, the Las Cruces Postmaster testified that he
moved complainant's work area because the operation had a problem
with delayed mail and a lack of supervision in that work area.
The Postmaster stated that he moved complainant's work area toward the
back of the office building along with all other operations on Tour 3.
He noted that complainant worked a full eight hours on December 21,
2000 but was sent home on December 22, 2000. He elaborated that the
supervisor "didn't immediately send [complainant] home, he worked
within restrictions at night until [the supervisor] could contact the
safety office the following day, to get clarification on what needed
to happen as far as getting a reevaluation of current restrictions
for Mr. Urista." He testified that officials told the supervisor that
complainant needed to submit updated medical documentation so that the
agency could determine what type of assignment was appropriate for him.
The Postmaster maintained that the management was particularly concerned
that complainant's documentation stated that he was completely restricted
from walking and wanted clarification on that particular matter from
a physician and sought to understand what type of work would be within
complainant's restrictions.
In testimony, an employee cited by complainant as a comparative stated
that he was a Distribution Clerk that had a hearing impairment3 and
"back trouble." The employee was given a light duty assignment working
in the corner of the office, away from noisy equipment. In that
assignment, the employee mainly processed return-to-sender (RTS) mail.
The employee further stated that he and complainant worked in the same
area until December 21, 2000. He testified that on December 21, 2000,
his letter case for working RTS was moved to the corner of the building
closest to the noisy equipment. When he requested to be moved away from
the noisy equipment, the supervisor allowed him to move to the "quiet
corner" on that day but requested that he submit medical documentation
to support his request, which the employee provided on a subsequent day.
The employee testified that he continued to work in the "quiet corner"
workstation for the following two months and never returned to the newly
configured work station.
The record contains an agency document dated June 14, 1999 entitled
"Temporary Limited Duty Assignment" describing complainant's medical
restrictions and assignment to sedentary desk work.4 The document states
that complainant is completely restricted from walking, bending/stooping,
lifting, pushing/pulling, standing, twisting, and reaching above his
shoulders for more than two hours. Also in the record is a copy of a form
dated October 7, 1999 submitted by complainant's physician. The document
states that complainant can only intermittently walk, sit, bend, climb,
kneel, and stand, but cannot squat or twist. The physician further stated
that complainant can intermittently lift fifteen pounds. The record also
contains an Office of Workers Compensation CA-17 form dated December 27,
2000, wherein complainant's physician diagnosed complainant as having
an aggravated inguinal hernia. The physician noted that complainant
could not stand, lift, walk, bend/stoop, twist, pull/push, or operate
machinery except to the extent that he could tolerate these activities.
The physician further noted that complainant could intermittently
reach above his shoulders for up to two hours per day. The physician
recommended that complainant permanently perform sedentary desk work
consistent with the restrictions. In a document also dated December
27, 2000, with a subject line of "Limited Duty Assignment," the agency
indicated that complainant was unable to perform his regular duties due to
an on-the-job injury. The document states that complainant was assigned
to sedentary desk work only, where he manually distributes letters, picks
up express mail from the airport, repairs damaged mail, and operates a
flat sorting machine. The document states that the desk job does not
involve any lifting, standing, walking, bending/stooping, twisting,
or pulling/pushing, except to the extent tolerated by complainant.
The document further states that complainant may be required to
intermittently reach above his shoulders for up to two hours per day.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Disparate Treatment
Where, as here, complainant does not have direct evidence of
discrimination, a claim alleging disparate treatment is examined under
the three part analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this analysis, complainant initially must
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. See St Mary's Honor Cntr. v. Hicks, 509 U.S. 502,
507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
252-53 (1981); McDonnell Douglas, 411 U.S. at 802. Next, in response,
the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas,
411 U.S. at 802. Finally, it is complainant's burden to demonstrate by
a preponderance of the evidence that the agency's action was based on
prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for
discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53;
McDonnell Douglas, 411 U.S. at 804. Although the burden of production
may shift, the burden of persuasion, by a preponderance of the evidence,
remains at all times on complainant. Burdine, 450 U.S. at 256.
In this case, the employee cited by complainant as a comparative is
over seven years older than complainant and is also male. We note that
the ADEA ""does not mean to stop an employer from favoring an older
employee over a younger one." Cline v. General Dynamics Land Systems,
Inc., 540 U.S. 581, 600 (2004); Esposito v. Department of Defense, EEOC
Appeal No. 01A45905 (March 16, 2005). Complainant has provided no other
evidence that would raise an inference of age or sex discrimination.
Therefore, we find that complainant failed to establish a prima facie
case of age or sex discrimination. Further, the comparative is not
similarly situated to complainant because the comparative has a hearing
impairment that affects his sensitivity to noise, whereas complainant
has a hernia that has resulted in significant walking and lifting
restrictions. Complainant has provided no other evidence that would
raise an inference of national origin or disability discrimination;
thus, we find that complainant also failed to establish a prima facie
case of national origin or disability discrimination.5
Nevertheless, the Commission also finds that the agency provided
legitimate, non-discriminatory reasons for its actions. Specifically,
the agency maintained that on December 21, 2000, the supervisor was
unfamiliar with complainant's restrictions and impairment because he
had just been assigned to complainant's work shift. He stated that
because of the extensive restrictions on complainant's work activities
contained on the form presented by complainant, he sought advice
from the Injury Compensation Office, which advised him to not allow
complainant to work until he submitted updated medical restrictions.
We find that complainant failed to rebut the agency's legitimate,
non-discriminatory reasons for its actions with persuasive evidence
that the agency's actions were motivated by unlawful discrimination.
Consequently, we find that the AJ properly found no discrimination.
Reasonable Accommodation
The agency also has a duty to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation
of its business. 29 C.F.R. � 1630.9(a).
Complainant alleged that the agency failed to accommodate him when
he was sent home on December 22, 2000 and directed to provide updated
medical documentation. Complainant returned to work on December 28,
2000 with updated medical documentation and was assigned to do work
within his limitations on that date. Therefore, we will only review the
period beginning December 22, 2000 and ending December 27, 2000 under an
accommodation analysis. Upon review of this matter, we first note that
it is unclear from the record which document complainant presented to
the "floating" supervisor on December 21 and 22, 2000 that reflected his
medical restrictions. However, complainant's testimony indicates that the
document he presented completely restricted complainant from standing,
walking, bending, twisting, or pushing/pulling and allowed him to reach
over his shoulders for two hours per day. Based upon this testimony
and other record evidence, we determine that most likely complainant
presented his temporary limited duty assignment dated June 14, 1999
to the supervisor, which corresponds to the restrictions complainant
testified he had on December 21, 2000.
We determine that given the extent of complainant's restrictions and the
fact that the "floating" supervisor was not familiar with complainant's
restrictions, it was reasonable for the supervisor to seek clarification
and an update of complainant's restrictions. Further, because work
areas had been newly reconfigured, the changed circumstances made
it necessary to reevaluate complainant's accommodation needs anew.
Moreover, the record reflects that the supervisor promptly consulted
Injury Compensation officials for guidance on the matter and immediately
assigned complainant work within his restrictions when he presented
updated medical documentation on December 28, 2000. We further note
that complainant's previous documentation completely restricted him
from walking, whereas his December 27, 2000 restrictions allowed him
to walk as tolerated, indicating that an update of his restrictions was
indeed warranted. The agency provided complainant with the opportunity
to provide updated documentation, and immediately provided complainant
with the requested accommodation once he presented the updated medical
documentation, which we find satisfied any duty it may have had to
provide complainant with a reasonable accommodation. Accordingly,
we find no violation of the Rehabilitation Act.
Finally, the Commission notes that the hearing in this case was held by
telephone, without objection from the parties.6 The Commission has held
that testimony cannot be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
specified conditions are met. Louthen v. United States Postal Service,
EEOC Appeal No. 01A44521 (May 17, 2006).7 However, since the facts of
this case pre-date Louthen, we will assess the propriety of conducting the
hearing telephonically by considering the totality of the circumstances.
Here, it is unclear whether exigent circumstances existed. On the other
hand, it is clear that there were no issues of witness credibility that
might have been impacted by the taking of testimony telephonically.
Therefore, we find that conducting a telephonic hearing amounted to
harmless error.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
__June 23, 2006________________
Date
1The record also indicates that the Office of Workers'
Compensation Programs (OWCP) compensated complainant for
the day he had an appointment with his physician.
2The supervisor did not testify during the telephonic hearing.
The Postmaster testified that the supervisor retired over
a year before the telephonic hearing.
3The comparative employee identified his hearing impairment
as tinnitus, typified by a continuous ringing noise in both
ears.
4Ostensibly the restrictions found on the assignment are
based upon a physician's evaluation, but the assignment
itself is not signed by a physician. The record does not
contain a physician's evaluation that corresponds with the
restrictions found on the June 1999 limited duty assignment.
5We assume arguendo that complainant is an individual with a
disability entitled to coverage under the Rehabilitation Act
6 The mere lack of objection is not dispositive, however.
See Louthen v. United States Postal Service, EEOC Appeal
No. 01A44521 (May 17, 2006).
7 In Louthen, the Commission has promulgated its policy
regarding the taking of telephonic testimony in the future
by setting forth explicit standards and obligations on its
Administrative Judges and the parties. Louthen requires
either a finding of exigent circumstances or a joint and
voluntary request by the parties with their informed
consent. When assessing prior instances of telephonic
testimony, the Commission will determine whether an abuse
of discretion has occurred by considering the totality
of the circumstances. In particular, the Commission
will consider factors such as whether there were exigent
circumstances, whether a party objected to the taking of
telephonic testimony, whether the credibility of any witnesses
testifying telephonically is at issue, and the importance
of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission
will scrutinize the evidence of record to determine whether
the error was harmless, as is found in this case.
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01A40516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A40516
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