01971288
10-31-2000
Jerome S. Crockett, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jerome S. Crockett v. United States Postal Service
01971288
10-31-00
.
Jerome S. Crockett,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01971288
Agency No. 4F-940-1087-95
DECISION
INTRODUCTION
On November 27, 1996, Jerome S. Crockett (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated November 5, 1996, concerning his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq.<1> The Commission hereby accepts the appeal in accordance with
29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on race, national origin, retaliation and physical disability.
BACKGROUND
Complainant was employed by the agency as a Letter Carrier at the Hamilton
Station in Palo Alto, California (the Facility). Complainant initiated
EEO Counseling on November 30, 1994. He filed a formal complaint on
July 7, 1995, alleging discrimination on the bases of race (black),
national origin (unspecified), retaliation (prior EEO activity), and
physical disability (chronic lower back pain). He claimed that he was
discriminated against when: 1) on November 21, 1994, he was informed
of a change in his days off; 2) on December 14, 1994, he was asked to
perform duties outside of his limitations; 3) on December 17, 1994,
he was told that there was no work within his limitations, and 4)
on February 27, 1995, he had difficulty in obtaining a PS Form CA-8.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant of his right to request an
administrative hearing. After complainant failed to request a hearing,
the agency issued its FAD on November 5, 1996.
In its FAD, the agency found that the complainant had failed to establish
a prima facie case of race, national origin or disability discrimination
because he was unable to demonstrate that he was treated differently
than similarly situated individuals not within his class.<2> The FAD
further stated that, assuming complainant had made out his prima facie
cases, he had failed to establish that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were a pretext for
discrimination. Complainant appeals, without comment.
ANALYSIS AND FINDINGS
Race, National Origin and Reprisal
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant 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 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
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 complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board 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 Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, in response to complainant's claims of discrimination, the
agency presented evidence that explained its reasons for the actions.
Regarding claim 1, that complainant's days off were changed, the agency
responded that complainant had submitted medical documentation from his
treating physician which recommended that he be given two consecutive
days off, as opposed to his current schedule of rotating days off.
Complainant was given Sunday and Monday off. Although he had requested to
be given Saturday and Sunday off, the operational needs of the facility
did not permit the agency to accommodate that request. Additionally,
complainant's physician told the Supervisor of Customer Services that
it was the complainant who was requesting Saturday and Sunday off,
not the physician. In response to claim 2, the agency presented the
testimony of a Manager at the Facility in which he stated that he
had asked complainant about the possibility of casing mail within his
medical restrictions on his former route. The Manager testified that
complainant had responded that he felt he could do that and never told the
Manager that this would be outside of his restrictions. The Supervisor
of Customer Services testified that, as to claim 3, after complainant
submitted more severe medical restrictions on December 17, 1994, there
was no work available that complainant could perform. Regarding claim 4,
the complainant did receive the Form CA-8, and any delay in obtaining
it was due to the person in possession of the key being in a meeting at
the time complainant wished to obtain the form. We find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Since the agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden returns to the complainant to demonstrate that
the agency's articulated reasons were a pretext for discrimination.
We find that complainant has failed to do so. Complainant submitted
no statement with his appeal to argue that the agency's reasons were
pretext for discrimination, and we find no evidence in the record to
support such an argument. Therefore, complainant failed to establish
that he was discriminated against on the bases of race, national origin
and retaliation.
Disability
We turn now to an examination of complainant's disability claim.
In order to claim the protections of the Rehabilitation Act, complainant
must first establish a prima facie case of disability discrimination
under a disparate treatment and/or a failure to accommodate theory.
In order to do so, the complainant must demonstrate that:(1) he is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g);<3>
(2) he is a qualified individual with a disability pursuant to 29 C.F.R. �
1630.2(m); and (3) he was subjected to an adverse personnel action under
circumstances giving rise to an inference of disability discrimination
and/or denied a reasonable accommodation. See Prewitt v. United States
Postal Service, 662 F.2d 292 (5th Cir. 1981).
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. � 1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. � 1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. � 1630.2(i).
Upon review of the medical evidence and testimony in the record,
we find that complainant has submitted sufficient evidence from
which we can conclude that he was substantially limited in the major
life activity of walking. The record contains numerous forms filled
out by complainant's doctor as he was applying for Office of Workers'
Compensation Programs (OWCP) benefits. With respect to the major life
activity of walking, the OWCP form dated June 27, 1994, shows that
complainant was limited to two hours a day or less (out of an eight
hour workday), in increments of less than fifteen minutes at a time.
Complainant noted in his affidavit that he had previously requested,
and was granted, as a reasonable accommodation, a handicapped parking
space next to the facility because of his inability to walk more than
two blocks. Therefore, we conclude that complainant is an "individual
with a disability" as it is defined in the Rehabilitation Act.<4>
We now turn to the issue of whether complainant was a �qualified
individual with a disability.� Complainant must show that he is a
"qualified" individual with a disability within the meaning of 29
C.F.R. � 1630.2(m). That section defines a qualified individual with
a disability as meaning, with respect to employment, a disabled person
who, with or without reasonable accommodation, can perform the essential
functions of the position in question. Pursuant to 29 C.F.R. � 1630.9(a),
an agency is required to make reasonable accommodations for the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability, unless the agency can demonstrate that the
accommodation would impose an undue hardship.
When an individual with a disability is no longer able to perform the
essential functions of the position because of a disability, the agency
has a duty to examine whether there are any positions to which he could
be reassigned such that he could perform the essential functions with
or without a reasonable accommodation. The record reflects that on
December 17, 1994, complainant submitted new, more restrictive medical
limitations to the agency and was told that there were no duties
available which he could perform that were within those limitations.
In light of complainant's severe restrictions, there was no position
that could be located by the agency for him to perform at that time.
A review of the record also reveals that, at complainant's request, the
union of which he was a member engaged in an investigation in January
1995 as to whether there was work available for complainant to perform
that would fall within his medical restrictions. The union concluded,
in a letter dated January 20, 1995, that �[b]ased on our investigation,
and the severe limitations that were placed on you by your physician,
we were unable to identify any duties that could have been performed
by you, at this time.� Therefore, complainant has not shown that the
agency failed to reasonably accommodate him.
With respect to his disparate treatment claim, complainant argued that he
had been discriminated against in the above-listed four claims based on
his disability. The agency articulated the previously stated legitimate,
non-discriminatory reasons for its actions. We find that complainant
has not shown these reasons to be pretext for discrimination against
him based on his chronic lower back condition.
In view of the foregoing, we conclude that the agency did not violate
the Rehabilitation Act.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
_10-31-00_________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The FAD neglected to make a determination on complainant's allegation
that he was subjected to retaliation based on his prior EEO activity.
The agency is reminded to consider all of complainant's bases of
discrimination when rendering a FAD. Because there is a sufficient
amount of information on the record, we will make a determination on
this issue.
3 The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See 29 U.S.C. � 791(g).
The ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
4 We further note that complainant had other restrictions on his
activities. The OWCP form dated June 27, 1994, detailed that complainant
was also restricted to no pushing or pulling, no lifting, no bending,
kneeling or twisting, and no simple grasping or fine manipulation.
It limited him in the activity of standing to two hours a day or less,
in increments of less than fifteen minutes at a time. Complainant,
in his affidavit, claimed that he was limited in the activities of
"bathing, cleaning, walking, [and] putting on clothes."