Glenn Grier, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionOct 14, 2009
0120081873 (E.E.O.C. Oct. 14, 2009)

0120081873

10-14-2009

Glenn Grier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Glenn Grier,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 0120081873

Agency No. 1G-756-0040-07

DECISION

On March 14, 2008, complainant filed an appeal from the agency's February

25, 2008 final decision concerning his equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted for

de novo review, pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission AFFIRMS the agency's final decision.

ISSUE PRESENTED

Whether complainant established that he was subjected to a violation of

the Rehabilitation Act concerning the challenged actions.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Limited Duty Mail Handler at the Bulk Mail Center (BMC) in Dallas,

Texas. On September 19, 2007, complainant filed an EEO complaint alleging

that he was discriminated against on the basis of disability (tendonitis

and degenerative joint disease of both ankles and feet) when:

(1) on August 1, 2007, he was issued a letter of warning (LOW) for

illegal parking; and

(2) on July 24, 2007, he was denied reasonable accommodation.1

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision (FAD) pursuant to 29

C.F.R. � 1614.110(b).

Final Agency Decision

The FAD initially found that the LOW was issued on August 1, 2007,

however, by grievance settlement dated November 8, 2007, the LOW was

rescinded. The FAD found that the grievance settlement has completely

eliminated all the effects of the alleged discriminatory action. Further,

there is no reasonable expectation that the alleged discrimination is

likely to reoccur. Accordingly, the agency found that the issue was moot.

The FAD further noted that complainant's request for an accommodation

(to arrive earlier for work so that he would be more likely to find

disabled parking close to the facility entrance) was also resolved in the

November 8, 2007 grievance settlement, in that his request for a change

of schedule was also granted. Accordingly, the FAD found that issue

(2) was also moot.

The FAD nevertheless addressed both claims on the merits under a disparate

treatment framework. The FAD found the following: complainant illegally

parked his vehicle at the Dallas BMC on July 24, 2007, left his car,

entered the building to clock in, exited and returned to move his car.

He received a LOW dated July 27, 2007, for Unacceptable Conduct - Failure

to Follow Instructions July 24, 2007. The record reveals that six other

employees received LOWs for parking violations during the same period

that complainant received his LOW. These employees are not identified as

having any medical restrictions. Although complainant contends that he

only parked there because he could not find a disabled parking spot, the

agency found that the record contains no evidence that the disciplinary

action was more likely than not, motivated by discriminatory animus.

The FAD then found that complainant did not establish that he was disabled

under the Rehabilitation Act, and therefore failed to establish a prima

facie case of discrimination. The FAD further found that complainant

was accommodated by being permitted to park in the disabled parking

area which is what he required, and that additionally, as of the signing

of the grievance settlement, he was allowed to come into work one hour

early to assist him in finding the parking he required. The decision

concluded that complainant failed to prove that he was subjected to

discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant simply states that he should be "made whole by

returning me to the original agreement [entered into by the parties in

2000] of a modified job with the reporting time of one hour earlier,

not a change of schedule." In response, the agency asserts that both

claims have been resolved, and asks the Commission to affirm the FAD.

ANALYSIS AND FINDINGS

Addressing issue (1), we note that the regulation set forth at 29 C.F.R. �

1614.107(a)(5) provides for the dismissal of a complaint when the issues

raised therein are moot. To determine whether the issues raised in

complainant's complaint are moot, the fact finder must ascertain whether

(1) it can be said with assurance that there is no reasonable expectation

that the alleged violation will recur; and (2) interim relief or events

have completely and irrevocably eradicated the effects of the alleged

discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631

(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July

10, 1998). When such circumstances exist, no relief is available and no

need for a determination of the rights of the parties is presented.

Here, complainant was issued a LOW for parking illegally. Subsequently,

by grievance settlement dated November 8, 2007, the LOW was rescinded.

The grievance settlement has therefore, eliminated all the effects of the

alleged discriminatory action. Further, as the settlement also provided

for complainant to be able to arrive early in order to avoid having

similar problems finding a disabled parking spot, there is no reasonable

expectation that the alleged discrimination is likely to recur.

Additionally, we note that allegations should not be dismissed as moot

when a complainant has requested compensatory damages, because the agency

must address the issue of compensatory damages when a complainant presents

objective evidence that he incurred compensatory damages and that the

damages were related to the alleged discrimination. See Jackson v. USPS,

EEOC Appeal No. 01923399 (November 12, 1992); request for reconsideration

denied, EEOC Request No. 05930306 (February 1, 1993). Here, complainant

has not requested said damages.

Issue (2): Reasonable Accommodation

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations

of a qualified individual with a disability unless the agency can show

that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)

and (p). For purposes of this decision, we shall assume arguendo that

complainant is a "qualified individual with a disability" within the

meaning of the Rehabilitation Act.

Complainant indicated that a prior EEO settlement dated April 18, 2000,

allowed him to come in one hour prior to the start time of the tour

in order to secure a disabled parking spot. He said the settlement

was signed by the BMC Manager at the time. Complainant explained he

utilized that accommodation for over five years. He stated however, that

a new Plant Manager changed the tour times in May or June of 2007, and

therefore, he again needs an accommodation because there are no disabled

parking spaces available when he reports to work. Complainant states

for instance, that when he reported for work, on July 24, 2007, there

were no disabled parking spaces available, and that is why he parked

illegally. He states that he requested this reasonable accommodation

from his supervisor in about May or June when the tour hours were changed

to 1:00 p.m. However, the request was denied. The agency maintained,

however, that complainant did not request the accommodation until August

1, 2007, when he submitted a request that was dated April 16, 2007.

The Commission discerns no violation of the Rehabilitation Act on the

part of the agency between May/June 2007 (when complainant claims he

first requested reasonable accommodation) and November 8, 2007 (the date

of the grievance settlement which authorized a schedule change for him).

Complainant's doctor's note dated April 16, 2007 states: "Please provide

and accommodate Mr. Glenn Grier with disabled parking close to his area

of work. Currently Mr. Grier has to walk up an incline and a great

distance. This incline and distance is aggravating his condition and

causing severe pain in bilateral feet and legs."2 Report of Investigation

(ROI), Affidavit B, at Ex. 4. The Supervisor of Security specifically

stated that he observed the events of July 24, 2007. Id., Affidavit E.

He stated that on that date, the disabled parking spots closest to

the facility were occupied when complainant arrived for work, however,

there were disabled parking spots available, which were approximately

100 yards away.3 Id. The Supervisor further stated that complainant

refused to park in those spots. Id.

Complainant has not responded to the assertion that there were vacant

disabled parking spots 100-150 yards away. That is, complainant has not

shown: (a) that there were actually no disabled parking spots available on

July 24, 2007, or on any other date prior to November 8, 2007; or (b) that

the parking spots that are 100-150 yards away would not be effective for

him because they are not "close" enough. As noted, complainant's doctor

simply stated that complainant needed "[disabled] parking parking close

to his area of work." ROI, Ex. B at 11. This record does not clearly

indicate that 100-150 yards would be too far for complainant to have to

walk, particularly given that his modified position required only 1-2

hours of "standing/walking intermittently," and at that time the medical

evidence (CA-17 dated April 12, 2007) showed that complainant could

walk and stand for 2 hours per day. Id., Attachment to Affidavit B.

Based on the above, we are not persuaded that the agency violated the

Rehabilitation Act concerning complainant's need to park "close" to his

work location.

We note that on appeal, complainant still asks for accommodation, namely,

"the reporting time of one hour earlier, not a change of schedule."

Complainant is not entitled to the accommodation of his choice. He is

merely entitled to an "effective" accommodation. In the context of

job performance, an "effective" accommodation means that the reasonable

accommodation enables the individual to perform the essential functions of

the position. See EEOC Enforcement Guidance on Reasonable Accommodation

and Undue Hardship Under the Americans with Disabilities Act, Notice

No. 915.002 (October 17, 2002). Complainant has not shown that the

accommodation that has been provided to him since November 8, 2007

(change of schedule), are not effective. Accordingly, we find no

discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (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

___10/14/09_______________

Date

1 Complainant indicated that when reporting to work and finding that no

handicap spot is available, he would like to park somewhere close to

his work station or be allowed to come in one hour early to alleviate

the problem.

2 This incline appears to be located between the regular employee parking

area and the work facility. The map does not clarify whether complainant

would have to walk up an incline if he parked in the handicapped spaces

100-150 yards away. See ROI, Ex. 6.

3 A map of the parking areas indicates that the distance from the entrance

to the additional handicap spots was 150 yards. Id.

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0120081873

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120081873