01984145
07-27-2001
Jerry D. Guest v. United States Postal Service
01984145
July 27, 2001
.
Jerry D. Guest,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984145
Agency No. 4-G-730-0052-97
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
the agency discriminated against him on the bases of age (DOB: January 7,
1948) and disability (myositis and myofascitis)<1> when on November 23,
1996, he was forced to accept a job outside of his medical restrictions.
BACKGROUND
The record indicates that complainant was a Distribution Clerk, PS-5,
at the agency's Processing and Distribution Center in Oklahoma City,
Oklahoma. Complainant had been working in the Rural Carrier Craft.
Following an on-the-job injury, he was offered a limited duty job in the
Clerk Craft on January 3, 1992. The record indicates that complainant
was still technically assigned to the Rural Carrier Craft, however,
assigned duties in the Clerk Craft since there was no work available as
a Carrier. In 1993, when complainant provided medical documentation
indicating that he could no longer perform the duties of the Rural
Carrier Craft, he was reassigned to the Clerk Craft. He filed a claim
with the Office of Workers' Compensation Programs (OWCP) which approved
disability retirement effective March 27, 1995.
The record further indicates that complainant's physician released
him to return to work. Based on information from OWCP, the agency
offered complainant a limited duty assignment in the Clerk Craft.
Complainant refused this position citing his medical limitations.
The agency reissued the position to complainant reducing his duty hours
from eight hours to four hours.<2> Then, on October 16, 1996, OWCP found
that the Clerk position complainant was offered was compatible with his
work restrictions. The OWCP notice also stated that if he failed to
accept this offered position and to demonstrate justification for his
failure to accept, his compensation would be terminated. On October 21,
1996, complainant requested that his physician (Physician) review the job
offer and provide him justification to refuse the position. On November
8, 1996, the Physician indicated that it would be in complainant's best
interest to return to work for four hours a day within the restrictions.
The Physician noted that complainant would experience some fatigue
initially but within one to two weeks, he would be able to return to an
eight hour work day. Complainant accepted the job by letter on November
11, 1996. The agency informed him that he was to report to work on
November 23, 1996.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on March 20, 1997.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency found, assuming that complainant established
a prima facie case of disability discrimination, that it provided
complainant with a reasonable accommodation by providing him with a
position within his medical restrictions. Furthermore, it noted that
complainant did not notify management that the position was not within his
limitations, otherwise it would have looked into the matter seriously.
Finally, as to complainant's claim of age-based discrimination,
complainant failed to establish a prima facie case in that there was
no indication that the agency's action was based on any discriminatory
animus towards his age. Accordingly, the agency issued its FAD finding
no discrimination.
This appeal followed. In his appeal, complainant raises claims pertaining
to the reassignment in 1993 to the Clerk Craft. In particular,
complainant states that it was in violation of agency policy and
done in order to terminate his seniority in the Rural Carrier Craft.
Complainant also makes allegations that he was denied night differential
and Sunday pay based on a decision by OWCP. As to the job offer in 1996,
complainant indicates that after he refused the position, the agency
was on notice that the position was not within his medical restrictions.
Complainant asserts that the agency failed to make any attempt to find
him work within his restriction. Instead, complainant contends that he
was forced to accept the position and felt that OWCP would find that
this job was suitable for him. Finally, complainant points out that
the Physician's note is hopeful and not definitive as to what he can do.
ANALYSIS AND FINDINGS
Claim on Appeal Regarding OWCP
The Commission has held that a complainant states a claim where he or
she alleges that, motivated by discriminatory animus, the agency took
specific steps to interfere with a workers' compensation claim. Bray
v. United States Postal Service, EEOC Appeal No. 01944243 (February 6,
1995), req. to reopen den., EEOC Request No. 05950410 (February 1, 1996);
Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29,
1994); O'Neal v. United States Postal Service, EEOC Request No. 05900620
(August 30, 1990). These cases typically involve failure of the agency
to provide information or signatures necessary to process the workers'
compensation claim. See id.
To an extent in his statement on appeal, however, complainant alleged
improper decisions from OWCP. To address this aspect of his appeal, the
Commission would have to review the determinations of OWCP. Review of
OWCP determinations is not within the jurisdiction of the Commission, and
does not fall within the limited circumstances under which a complainant
may appeal to the Commission. See Hogan, EEOC Request No. 05940407
(September 29, 1994); Gray v. Department of the Army, EEOC Appeal
No. 01944944 (August 8, 1995). Accordingly, we will not address this
portion of complainant's appeal.
Claim of Reasonable Accommodation
In his complaint, complainant contends that the agency forced him to
accept an assignment outside of his working restrictions. In essence,
complainant is alleging that the agency failed to provide him with a
reasonable accommodation. Under the Commission's regulations, an agency
is required to make reasonable accommodation for 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); 29 C.F.R. � 1630.2(p).
To establish a prima facie case of disability discrimination under
a disparate treatment and/or a failure to accommodate theory, the
complainant must demonstrate that: (1) he is an "individual with a
disability"; (2) he is "qualified" for the position held or desired;
(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. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). As to the first step of a prima facie case, the agency
does not contest that complainant has an impairment which substantially
limits him in one or more major life activity or that he is qualified.
Therefore, we assume that complainant has met this burden.
Finally, complainant must show that he was denied a reasonable
accommodation. Upon review of the record, the Commission finds that
the agency has fulfilled its obligation under the Rehabilitation Act.
Following a decision from OWCP indicating that complainant was released
to work by his physician, on September 25, 1996, the agency informed
complainant that it had identified an appropriate position for him and
that he had thirty days to accept this offer. Complainant declined the
limited duty assignment on September 30, 1996, stating that the position
did not meet his work restrictions. On October 7, 1996, the agency
then revised the position based on complainant's statements, to limit
the position to four hours and gave complainant another thirty days to
respond to their offer. On October 16, 1996, OWCP informed complainant
that it found the offered position suitable and on November 8, 1996,
the Physician indicated that �it would be in [the complainant's] best
interest to make a trial of returning to work four hours a day with
work restrictions.� Report of Investigation, p. 48.<3> Upon review of
the record, it appears that the offered position in the Clerk Craft is
within complainant's medical restriction. Accordingly, we find that the
agency provided complainant with a reasonable accommodation.
Age Discrimination
As to the remaining basis, complainant claims that the agency treated
him differently on the basis of age. 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);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). 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. United States
Postal Service Bd. 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).
Upon review, the Commission finds that the agency has met its burden of
articulating legitimate, nondiscriminatory reasons for its actions.
The record indicates that the agency took its action based upon
information from OWCP revealing that complainant had been released by
his physician to return to work with restrictions. Based on OWCP's
information and complainant's response to their initial assignment,
the agency offered complainant a limited duty position in the Clerk Craft.
Having found that the agency has articulated a legitimate,
nondiscriminatory reason for its action, the burden now turns to
complainant to demonstrate that the agency's reasoning was pretext for
discrimination. Upon review of the record, the Commission finds that
complainant has failed to do so. Complainant contends that the agency
and OWCP have operated to deny him his rights and is demonstrated by
the assignment to a position outside of his restrictions. We find that
these arguments do not establish that the agency's reasons were merely
to mask unlawful discrimination on the basis of age.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
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
July 27, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record indicates that complainant has pain in his neck, shoulders,
and upper back.
2 The position involved repairing torn/damaged letters, flats, and
magazines. The physical requirements of the position included the ability
to sit up to four hours, lift up to five pounds, and manual manipulation
of letter pieces. The job offer did note that walking was only required
for personal needs.
3 The Commission notes that the Physician does not indicate that the
position is outside of complainant's physical limitations.