0120080443
11-13-2009
James R. Easter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James R. Easter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No.0120080443
Hearing No. 540-2006-00051X
Agency No. 4E-852-0181-05
DECISION
JURISDICTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 3, 2007 final order 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. For the
following reasons, the Commission affirms the agency's final order.
BACKGROUND
Complainant contacted an EEO counselor on August 25, 2005, and filed
his formal complaint on November 4, 2005. He alleged that the agency
discriminated against him on the basis of age (55) and disability (plantar
fasciitis) when (a) on May 7, 2005, complainant was directed to return to
full unrestricted duty, and his duty hours were changed to 7:00 a.m. to
4:00 p.m. with scheduled off days of Friday and Sunday; (b) on August 25,
2005, management sent complainant to window training; and (c) on October
6, 2005, complainant provided management with medical documentation,
and management refused to return him to his previous schedule.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On March 1-2, and April 27, 2006, the
AJ held a hearing. On September 26, 2007, the AJ issued a decision,
finding that the agency did not discriminate against complainant.1
At the time of the events herein, complainant worked as a Mail Processing
Clerk at the Ocotillo Station in Chandler, Arizona. He worked in a
modified position due to an on-the-job injury to his foot in August 1988,
and the Office of Workers Compensation Programs, Department of Labor
(OWCP) accepted his claim. From about 2000, he occupied a modified job
with restrictions on standing, walking and lifting, from 7:00 a.m. to 3:30
p.m., with Saturday and Sunday as his days off. In September 2004, he
underwent a fitness for duty examination by Dr. L, who was chosen by his
OWCP nurse case manager, in order to update his medical status for OWCP.
Dr. L reported that complainant's current restrictions should continue
and that he was able to perform the core job duties of his position.
Dr. L re-examined complainant in March 2005, and sent the agency a
letter removing all restrictions, stating that complainant had reached
maximum medical improvement and approved him to work as a Distribution
and Window Clerk.
In May 2005, the agency assigned complainant as an unassigned regular to
Sales, Service and Distribution, working from 7:00 a.m. to 4:00 p.m. with
scheduled days off on Friday and Sunday. Complainant sought advice
from another doctor, Dr. H, who informed the agency that complainant had
chronic plantar fasciitis and limited his standing to 15 minutes per hour.
OWCP rejected Dr. H's report, because Dr. H refused to complete the
paperwork for OWCP associated with complainant's claim. In October
2005, complainant returned to Dr. L, who restored complainant's former
restrictions; however, his former schedule was not reinstated.
The AJ found that complainant was not a qualified individual with a
disability, in that, his restrictions did not rise to the level that he
was substantially limited in the major life activity of walking/standing
compared to individuals in the general population. He explained that,
although complainant had restrictions on walking/standing, he failed
to show he was substantially limited. Further, the AJ noted that,
even if complainant were a qualified individual with a disability, he
did not show that the agency failed to accommodate him when it changed
his schedule, sent him to window training, and refused to reinstate
his previous schedule. He also concluded that, even if complainant's
submission of Dr. H's report (that he required restrictions) were
construed as a request for a reasonable accommodation, the request
was not denied. Complainant testified that, from May to October 2005,
when he was assigned to full duty, he was not assigned work outside of
his restrictions, and the Postmaster (PM) testified that she did not
assign him work outside of his restrictions during that period. As to
complainant's new schedule with Friday/Sunday off days, the AJ noted
that he presented no evidence that he required a different schedule as
a reasonable accommodation for his medical condition.
Lastly, the AJ concluded that, assuming complainant established a
prima facie case of discrimination based on disability, the agency
articulated a legitimate, nondiscriminatory reason for its actions
and that complainant did not demonstrate pretext. PM explained that
in May 2005, the station was directed by its management to provide
retail services on Saturday, including window and sales services.
Because the agency did not provide additional staffing slots, PM moved
the three most junior clerks, including complainant, to meet the need
for Saturday service. PM also stated that she sought cross-training
for these employees, so that they would be available as relief and for
backfilling other qualified Window Clerks.
CONTENTIONS ON APPEAL
In his appeal brief, complainant argued that his medical condition is
a disability under the Rehabilitation Act and noted Dr. L's testimony
about his condition, describing it as chronic plantar fasciitis. He also
stated that his condition affects his work and criticized the AJ for
not addressing working as a major life activity. He emphasized that he
is a qualified individual with a disability and that the AJ failed to
fully address his qualified status. Finally, he argued that, since Dr. L
was wrong, and complainant's restrictions should not have been removed,
his old schedule should be reinstated.
The agency urged that the Commission affirm the agency's decision,
agreeing to implement the AJ's decision.
ANALYSIS AND FINDINGS
Standard of Review
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. We find
that the decision of the AJ accurately stated the salient facts and
correctly applied the pertinent principles of law.
Disparate Treatment Analysis
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that
reasonable accommodation would cause an undue hardship. See 29 C.F.R. ��
1630.2(o) and (p). Complainant alleged that he was subjected to disparate
treatment discrimination based on disability (plantar fibromatosis)
when he was returned to full, unrestricted duty, and his duty hours
were changed to 7:00 a.m. to 4:00 p.m. with off days of Friday and
Sunday; the agency sent complainant to window training; and the agency
refused to return him to his previous schedule when he presented medical
documentation that reinstated his medical limitations.
In general, disparate treatment claims, such as complainant's,
are examined under a tripartite analysis whereby a 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 consideration was a factor
in the adverse employment action. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); 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). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show 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); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of our analysis, we assume, without so finding that
complainant has established a prima facie case of age and disability
discrimination. Applying the McDonnell Douglas formula to the instant
matter and assuming, arguendo, that complainant has established a
prima facie case of discrimination, we turn to analysis of the agency's
stated reasons for its actions.2 PM explained that, in May 2005, her
management mandated the facility to establish Saturday services for
its customers, without additional staff slots, because they determined
that the facility had a need for Saturday service to better serve its
customers. She described the residential area serviced by the facility
as containing a large number of "snowbirds," residents who spend summers
elsewhere but return to Arizona from September/October through April/May,
flooding the facility when resident in the area.
To increase the staff available on Saturday, PM modified the schedules
of the three most junior clerks, including complainant. She described
her goal to train as many employees as possible to work as Window Clerks,
to use them for relief at the window and to backfill for those needed for
window service. At about the same time, she was notified that complainant
was returned to full duty, and he was also sent for window training.
She stated that she continued to respect complainant's restrictions and
abided by them in assigning him work. Even though complainant did not
qualify as a Window Clerk, she indicated that he would serve as relief
or backfill a Window Clerk's regular position. We note that complainant
testified that he did no work outside of his restrictions during the
May-October 2005 period when he was assigned to unrestricted duty.
After review, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions, in that complainant's schedule
changed and he was sent for window training, not because of his medical
condition or restrictions; instead, his schedule changed because he was
one of the three junior clerks at the facility. The ultimate burden of
proof now returns to complainant to demonstrate by preponderant evidence
that the reasons articulated by the agency for its actions were not its
true and real reasons but were taken in order to discriminate against
complainant and influenced by legally impermissible criteria, e.g.,
complainant's medical condition. See St. Mary's Honor Center v. Hicks,
supra. Thus, complainant must show, through probative evidence, not
only that the agency's decision was not a sound business action, but
that it was made in order to discriminate against him.
Complainant argued that the agency did not show an operational need
for changing his schedule and that it failed to reinstate his former
schedule when his restrictions were restored. In the first instance,
PM testified about the agency's operational need for Saturday service, in
that she was directed by her managers to institute it. And, as revealed
by her testimony, the change in complainant's medical restrictions had
no connection to the modification of his schedule, in that the change
was because of his juniority status in the Clerk craft. In addition,
complainant's contention that the AJ should have raised working as a
major life activity is misplaced, as it was his obligation to identify
his affected major life activities and show that he was substantially
limited.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
Accordingly, the agency's decision is affirmed.
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
November 13, 2009
Date
1 On December 2, 2005, the agency dismissed issue (a) for untimely EEO
contact and issue (b) for failure to state a claim. See 29 C.F.R. �
1614.107 (a)(2); 29 C.F.R. � 1614.107 (a)(1). However, prior to the
hearing, the AJ granted complainant's request to reinstate issues (a)
and (b). In addition, at the beginning of the hearing, complainant
withdrew his allegation of discrimination based on age.
2 In this matter, complainant sought to revert to Saturday as a
non-scheduled day; however, complainant did not present evidence or
provide a reason for requiring Saturdays off.
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7 0120080443
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013