01A13832
01-03-2002
John P. Rowland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
John P. Rowland v. United States Postal Service
01994272, 01A10576, 01A13832
January 3, 2002
.
John P. Rowland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01994272, 01A10576, 01A13832
Agency Nos. 4-H-335-0221-98, 4-H-335-0047-00, 4-H-335-0072-00,
4-H-335-0105-98
DECISION
Complainant timely initiated appeals from final agency decisions (FADs)
concerning his complaints of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeals are accepted pursuant to 29 C.F.R. � 1614.405.<2>
ISSUES PRESENTED
The issues presented herein are whether the complainant has established
that the agency discriminated against him on the bases of his race
(Caucasian), color (white), sex (male), physical disability (plantar
fasciitus/calcaneal fasciitis) and reprisal when: Issue No. 1: on March
14, 1998, complainant was removed from his bid assignment (Complaint
1: Agency No. 4-H-335-0221-98); Issue No. 2: on September 8, 1999,
complainant was issued a Letter of Warning (LOW) and on October 7,
1999, complainant was issued a Seven-Day Suspension (Complaint 2:
Agency No. 4-H-335-0047-00 and Agency No. 4-H-335-0072-00 <3>); and
Issue No. 3: on October 29, 1997, he was assigned several tasks which
required him to use the telephone, and complainant was ordered to
write down details concerning each telephone call (Complaint 3: Agency
No. 4-H-335-0105-98).<4>
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Letter/City Carrier (PS-05) at the agency's Sulphur Springs Station,
Tampa, Florida facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed the above
referenced formal complaints. At the conclusion of each 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. In Complaint 1, the agency issued a FAD after the complainant
withdrew his request for a hearing and, requested a FAD from the agency.
The agency issued final decisions when complainant failed to request a
hearing as to Complaints 2 and 3.
In its FADs, the agency concluded as to Issue No.1: complainant failed
to prove a discriminatory motive based on race, color, sex, or physical
disability; that the agency articulated a legitimate, nondiscriminatory
reason for its action, and complainant failed to offer any evidence of
pretext; as to Issue No. 2: complainant failed to show that he was an
employee with a disability, that the agency articulated a legitimate,
nondiscriminatory reason for its action, and complainant failed to
offer any credible evidence that the agency's actions were motivated by
discriminatory animus based on physical disability or retaliation; and as
to Issue No. 3: complainant failed to show that he was an employee with a
disability, that the agency articulated a legitimate, nondiscriminatory
reason for its action, and complainant failed to offer any evidence
of pretext.
CONTENTIONS ON APPEAL
The complainant did not submit contentions on appeal as to Issue No. 1.
As to Issue No. 2, the complainant contends that the FAD does not properly
address the facts of the case, and the LOW and the Seven-Day Suspension
are both discriminatory and retaliatory, and it was not necessary to
show his U. S. Department of Labor, Office of Workers' Compensation
Programs (OWCP) claim on his PS form 3971. As to Issue No. 3, the
complainant contends that the agency made an unsubstantiated claim under
the Rehabilitation Act instead of addressing the wrongful actions of
the supervisor. The agency did not submit any contentions on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment Discrimination and Reprisal
In cases involving indirect evidence, the Commission applies the same
analysis for intentional race, color, sex, disability discrimination
and reprisal cases brought under Title VII, the Rehabilitation Act, or
the ADEA. See Brown v. Department of the Army, EEOC Appeal No. 01970189
(February 25, 2000) (citing Prewitt v. United States Postal Service,
662 F.2d 292, 305 (5th Cir. 1981) and Sutton v. Atlantic Richfield Co.,
646 F.2d 407, 411 (9th Cir. 1981)). 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 reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If complainant
succeeds, the burden of production shifts for the agency to provide a
legitimate, nondiscriminatory reason for its actions. Id. To meet its
burden of production, the agency need only articulate a legally sufficient
reason to justify its decision. See Thompson v. United States Postal
Service, EEOC Appeal No. 01971189 (August 31, 2000) (citing Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If successful,
the burden reverts to complainant to demonstrate by a preponderance of
the evidence that the agency's reasons were a pretext for discrimination.
See Hammons v. Department of Housing and Urban Development, EEOC Request
No. 05971093 (March 5, 1999).
Complainant can establish a prima facie case based on race, color,
or sex by showing: (1) that he is a member of the protected group; (2)
that he suffered an adverse action; and (3) that a similarly situated
employee not in his protected group was treated more favorably than him.
See McDonnell Douglas Corp. v. Green, supra.
Complainant can establish a prima facie case of reprisal by showing that:
(1) he engaged in a protected activity; (2) the agency was aware of
his protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. McDonnell Douglas, supra, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997).
Complainant can establish a prima facie case of disparate treatment claim
under the Rehabilitation Act by showing: (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 employment action; and (4) the
circumstances surrounding the adverse action give rise to an inference
of discrimination. Lawson v. CSX Transportation, Inc., 245 F.3d 916
(7th Cir. March 26, 2001).
Issue No.1: Removal From Bid Assignment
Complainant was a city letter carrier whose bid route had approximately
479 deliveries, of which 46 were curbline, and which was set up as a �park
& loop�route. While being treated for his feet, prior to reaching maximum
medical improvement (MMI), the complainant was allowed to �dismount�
deliver the route. Complainant's doctor wrote that complainant had been
fitted with orthotics, had reached MMI, and had a permanent impairment of
10% of the right lower extremity as a result of the plantar fasciitis.
His physician prepared a Duty Status Report which stated complainant
could intermittently stand 6 hours a day, continuously walk for 8 hours
a day and could drive a vehicle with power brakes. The doctor stated
that complainant should not deliver a �park & loop�route but should
deliver �dismount delivery� routes.
Upon this advice, the complainant was assigned to the position of
�unassigned regular.� Complainant requested that his route be changed
from �park & loop� to a �dismount route,� and that he be allowed to
deliver �house to house� and only have multiple deliveries when parking
was not available. The agency stated that it was not cost effective for
the route to be changed to a �dismount� route and that claimant could
exercise his bidding rights as to routes within his medical limitations.
Upon review of the record, and assuming, arguendo, that complainant
was a qualified individual with a disability, the record indicates
that the agency articulated a legitimate, non-discriminatory reason
for the employment action in that the route was set up as a �park &
loop� and that it would not be cost effective to change the route to a
�dismount� route. Further the agency assigned complainant to �unassigned
regular� with bid rights which could be exercised in accordance with his
medical limitations. The Commission finds that complainant failed to
present evidence that the agency's articulated reasons for its actions
were a pretext for discrimination.
The agency is obligated to make reasonable accommodations for the
known physical and mental limitations of a qualified individual with
a disability. See Sellers v. Department of Veterans Affairs, EEOC
Appeal No. 01964003 (Oct. 3, 2000) (citing 29 C.F.R. � 1630.2(o) - (p)).
The agency may not be required to provide accommodation if doing so
would work an "undue hardship" upon its operations. Hall v. USPS, 857
F.2d 1073, 1080 (6th Cir. 1988). Assuming, arguendo, that complainant
was a qualified individual with a disability, the record indicates that
complainant's request to change the nature of his route would not have
been a reasonable accommodation and his supervisor offered complainant a
reasonable accommodation -- the agency moved complainant to �unassigned
regular.� The agency is not obligated to provide complainant with
his chosen accommodation. See EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC Order No. 915.002, question 9 at 17 - 18 (March 1, 1999).
It must provide only a reasonable accommodation that allows complainant
to perform the essential functions of his job. Id. Complainant was
assigned off of the �park & loop� route in accordance with his doctor's
recommendations, and as an �unassigned regular� carrier could perform
the essential functions of his job.
Concerning complainant's allegations of race, color, and sex
discrimination, complainant stated that if he was a minority or female,
he would not have been discriminated against. Complainant offered no
proof of these allegations. The record reflects that another carrier's
(female) bid assignment was abolished for similar reasons.
Issue No. 2: Letter of Warning (LOW) and Seven-Day Suspension
Complainant was issued a LOW and a subsequent Notice of Seven-Day
Suspension for unscheduled absences. Complainant alleged discrimination
based on a �permanent-partial� physical disability and reprisal.
Complainant had submitted a May 29, 1998 doctor's letter to OWCP,
indicating a partial disability relating to chronic plantar fasciitis and
chronic tarsal tunnel compression syndrome. Complainant also submitted
an April 29, 1996 OWCP letter advising complainant that his claim for
plantar fasciitis was accepted. Complainant did not submit any evidence
that his attendance was not unsatisfactory, while similarly situated
employees were treated differently.
A customer service supervisor (DR) issued the LOW to complainant
on September 8, 1999. On October 7, 1999, another customer service
supervisor (EO) issued the Seven-Day Suspension. Complainant alleged
that these actions occurred with the approval of the manager of customer
service (RB). Complainant alleged that his absences were in connection
with an on-the-job injury approved by OWCP and that there were also
absences connected to dependent care and a death in the family.
Concerning his disability discrimination claim, complainant stated that
he was provided a vehicle with power brakes and that he was provided
a dismount route because he could not perform a �park & loop� route.
Complainant further contended that he was being retaliated against due to
prior EEO activity. Complainant also submitted the names of comparatives
who he alleged had absences related to on-the-job, off-the-job and loss
of immediate family members without getting LOWs or Seven-Day Suspensions.
DR testified that he did the investigation for the issuance of the LOW.
DR requested the LOW because the complainant had 14 instances of
unscheduled absences in a eight month period. DR stated that when
complainant was scheduled for work and called to advise that he could
not work, that such absence would be an unscheduled absence. He stated
that complainant had received discussions concerning the absences, but
failed to correct the problem. The LOW states that complainant, during
the investigative interview, responded �no comment� to every question
asked concerning his absences. He was specifically asked whether any
of his unscheduled leave was used under the Family Medical Leave Act,
and he responded �no comment.�
DR stated that he was aware complainant could not deliver a �park &
loop� route and needed to use power assisted brakes. He was aware that
complainant had EEO complaints because complainant told him. DR testified
complainant was issued a LOW for unscheduled absences and not because
of his disability. He testified that he had issued LOWs for unscheduled
absences, but not to the employees listed in the complainant's affidavit.
DR testified that two comparatives came to work with their injuries,
another two took annual or sick leave, and another worked every day that
he was supposed to work. DR stated that when complainant was asked for
medical documentation, he always just provided a copy of the OWCP letter.
EO testified that he issued the suspension to complainant when complainant
continued his unscheduled absences and failed to provide adequate
documentation for the unscheduled absences for which the discipline
was issued. EO stated that he was aware that complainant had an OWCP
claim for his feet and, that he required a vehicle with power brakes,
and could not perform a �park & loop.� EO was not aware of any specific
EEO activity until after the investigative interview. He testified that
complainant's prior EEO activity was not a consideration in the issuance
of the suspension. EO testified that he had issued similar actions
against other carriers, but none of the other carrier's had attendance
records similar to complainant's. He testified that complainant had
an excuse for every absence and for most absences, he claimed the OWCP.
EO claimed that this information was not on the Request of or Notification
of Absence forms (PS 3971). Complainant testified that he was told not
to use the remarks section of the PS 3971 form for OWCP information.
EO stated that complainant supplied the same documentation that was
already on file, some of it from 1996.
RB testified that he was asked to give advice concerning the LOW and the
Seven-Day Suspension. He was aware of the complainant's disability and
that all of his doctor's recommendations were met. He testified that
the complainant's alleged disability and prior EEO activities were not
a consideration in the actions. As to the comparatives, RB testified
that since he is not the person taking corrective action, he has not
issued similar action. He testified that the comparatives all had good
attendance records and came to work.
The complainant did not offer any evidence that the reasons given for the
issuance of the LOW and the Seven-Day Suspension - unscheduled absences
and failure to provide documentation for absences - were pretext for
disability discrimination or reprisal.
Assuming, arguendo, that complainant was an individual with a
disability, the record indicates that the agency articulated a
legitimate, non-discriminatory reason for the employment action
based on the complainant's unsatisfactory attendance and failure to
provide adequate documentation. Complainant has not demonstrated by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Complainant has not proven by
a preponderance of the evidence, that he was treated differently than
individuals not within his protected group.
Even if complainant met the requisite elements of a prima facie case,
complainant fails to prevail on his claim of reprisal because he
was unable to show that the reasons articulated by the agency were a
pretext for discrimination. In this regard, the Commission notes that
the complainant failed to submit any evidence that his attendance was
not unsatisfactory, or that similarly situated employees were treated
differently.
After a careful review of the record, the Commission finds complainant
failed to establish an inference of discrimination and failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by complainant's
disability.
Issue No. 3: Telephone Instructions
On February 20, 1998, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his
race (Caucasian), color (white), sex (male), and physical disability
(plantar fasciitus) when on October 29, 1997, he received an official
discussion for being on the telephone too much. Complainant also claimed
discrimination with regard to having been assigned several tasks that
required using the telephone, and asserted that he was ordered to write
down details concerning each telephone call. The agency dismissed the
complaint on the grounds that it failed to state a claim. The agency
only addressed that portion of the complaint dealing with complainant
being given an official discussion for being on the telephone too much.
The agency determined that complainant did not suffer a personal loss
or harm to a term or condition of his employment as a result of the
alleged action. In the prior appeal, complainant maintained that the
scope of his complaint went beyond the official discussion and that the
alleged incidents constituted harassment.<5>
The Commission found that these incidents were not sufficiently severe
or pervasive to constitute harassment. However, the Commission found
that the matters concerning complainant being assigned several tasks
that required using the telephone and being ordered to write down details
concerning each telephone call related to work assignments that were part
of the terms of his employment. The Commission found that complainant
was an aggrieved employee and that those issues stated cognizable claims.
Those claims were remanded to the agency for further processing and are
now before the Commission on appeal from a FAD dated April 3, 2001.
In its FAD, the agency concluded that complainant failed to establish that
he was an employee with a disability as defined by the Rehabilitation Act.
The agency found that the complainant failed to demonstrate that he had a
physical impairment which substantially limited one or more or his major
life activities, that he had a record of such an impairment, or that he
was regarded as having such an impairment. The agency went on to note
that it was undisputed that the complainant had a medical condition;
however, it stated that the condition in and of itself did not render the
complainant an individual with a physical disability as defined by the
Rehabilitation Act. Further, the agency stated that there was nothing
indicating that this was a permanent condition that limited on or more
of the complainant's major life activities. The FAD also set forth
that assuming, arguendo, that the complainant had established a prima
facie case of disability discrimination, management had accommodated
his condition meeting all the requirements of his limitations.<6>
The agency also noted that customer service supervisor (TL) ordered
complainant to write down details concerning each call after TL overhead
complainant on a personal phone call that went on several minutes, tying
up the phone for business calls. TL stated that complainant argued that
it was a business call and TL did not know what the call was about.
TL stated, to eliminate any misunderstanding, the complainant was to
write down everything that went on during the time the complainant was on
the phone. TL stated that he had never had anyone else abuse the phone
usage to require the issuance of similar instructions. The complainant
was not disciplined and was not denied any employment benefit as a result
of these instructions.
The agency noted complainant failed to establish that the agency reason
for the instruction was a pretext for intentional discrimination and
there was no evidence of disability discrimination.
Assuming, arguendo, that complainant was an individual with a disability,
the record indicates that the agency articulated a legitimate,
non-discriminatory reason for the instruction in that the complainant was
on a lengthy personal phone call and to eliminate any misunderstanding
between complainant and the supervisor, complainant was instructed to
write down phone call details.
The Commission finds nothing to support complainant's claim that his
alleged disability motivated the instruction. The Commission finds
nothing to support complainant's claim that race, color, and sex motivated
the instruction.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the FADs.
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
__January 3, 2002
Date
1 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.
2 These appeals are consolidated in the interest of administrative
economy. The Commission may consolidate two or more complaints of
discrimination filed by the same complainant. See 29 C.F.R. �1614.606.
3 Agency Nos. 4-H-335-0047-00 and 4-H-335-0072-00 were investigated
together and one FAD was issued on September 14, 2000.
4 Rowland v. United States Postal Service, EEOC Appeal No. 01984096
(June 29, 2000).
5 See FN 4.
6 In order to prove a prima facie claim of discrimination under the
Rehabilitation Act, a complainant must first meet certain requirements
under the Act. In order to establish a prima facie case of disability
discrimination, complainant must prove, by a preponderance of the
evidence, that he was treated differently than individuals not within his
protected group, or that the agency failed to make a needed reasonable
accommodation, resulting in adverse treatment of complainant. See Sisson
v. Helms, 751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846
(1985).