Jerome S. Crockett, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 31, 2000
01971288 (E.E.O.C. Oct. 31, 2000)

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."