01965398
10-08-1998
Jon E. Murphy, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jon E. Murphy v. United States Postal Service
01965398
October 8, 1998
Jon E. Murphy, )
Appellant, )
)
v. )
) Appeal No. 01965398
William J. Henderson, ) Agency No. 4G-752-1145-95
Postmaster General, )
United States Postal Service, )
Agency. )
_______________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (the Commission) from the final decision of the agency (FAD)
concerning his allegation that the agency violated 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. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001. For the reasons set forth below, we AFFIRM the FAD.
ISSUE PRESENTED
The issue presented in this appeal is whether appellant proved, by a
preponderance of the evidence, that he was discriminated against because
of his previous EEO activity and mental disability (Major Depression and
Panic Disorder) when on January 9, 1995, he was denied a reassignment to
the position of Customer Service Representative, EAS-16, in the Dallas
District.<1>
BACKGROUND
Appellant filed a formal complaint against the agency on February
15, 1995. The agency conducted an investigation, and upon its
completion, appellant was provided a copy of the investigative file.
Appellant was advised of his right to an administrative hearing before
an EEOC Administrative Judge; however, he asked for an immediate FAD.
The agency issued a FAD finding no discrimination in June 1996. It is
from this decision that appellant now appeals.
Appellant, a Customer Service Supervisor at the agency's Coppell, Texas
Main Post Office, was forced to leave his job on October 13, 1994 because
of his depression and panic disorder.<2> In a letter dated October 27,
1994, appellant, maintaining that he would return to work on November
8, 1994, requested that he be transferred out of the Coppell facility.
Appellant's transfer request did not specifically indicate that it was
for medical reasons. On November 2, 1994, however, his physician, Doctor
S, informed the agency that appellant "[r]emain[ed] in a great deal of
distress secondary to his psychiatric problems, much of which is directly
related to his current employment situation." Doctor S indicated that
due to appellant's "functional deterioration," he was "[r]ecommending full
disability from his job, effective today through February 15, 1995."
Appellant's postmaster, A-1, on November 8, 1994 requested that a
fitness-for-duty examination be scheduled for appellant. On November
18, 1994, after conducting the examination, Doctor K, the agency's
physician, agreed that appellant was "totally disabled." Doctor S, in a
letter dated December 7, 1994, indicated that appellant's transfer to a
"lower stressed, non-supervisory, administrative or staff position,"
would be beneficial and would allow appellant to return to work soon.
On January 11, 1995, however, Doctor S informed the agency that appellant
"continues to have problems." Moreover, he stated that appellant would
not be able to return to work at that time, or after February 15, 1995.
On February 22, 1995, Doctor S indicated that appellant was still
"[u]nable to return to work." Finally, on June 13, 1995, Doctor S again
notified the agency that appellant was unable to return to work.
On January 9, 1995, the agency announced the promotion of C-1 to the
position of Customer Service Representative in Dallas District Sales
(Customer Service position). Appellant maintained that although he
was qualified for the position, the agency failed to consider him.
Appellant indicated that he would have been willing to accept the
Customer Service position, "[i]f the reassignment was concurred with
by my doctors, and no further aggression by USPS [sic] was continued."
According to appellant, A-1 and the Manager, Post Office Operations,
A-2, discriminated against him because of his prior EEO activity.
Appellant acknowledged, however, that he never applied for or requested
an assignment to the Customer Service position.
A-1 testified that she played no role in appellant's reassignment request
or the selection of C-1. A-2 testified that she was not involved in
the selection of C-1 for the Customer Service position. The record,
we note, does indicate that A-3, the Acting Manager, Postal Business
Center, selected C-1, not A-1 or A-2. With regard to appellant's transfer
request, A-2 also testified that she compiled a list of all supervisory
vacancies as of October 28, 1994. She sent each selecting official a
letter along with appellant's reassignment request. According to A-2,
only one selecting official ever acknowledged her letter. Subsequently,
she received Doctor K's November 18, 1994 statement indicating that
appellant was totally disabled. Therefore, since he was unable to return
to work, she ceased all efforts to find a reassignment. A-2 acknowledged
that appellant, in December 1994, filed an EEO complaint against her.
ANALYSIS AND FINDINGS
REPRISAL
Appellant argues that he was denied reassignment to the Customer
Service position because of his previous EEO activity. This allegation
constitutes a claim of disparate treatment. As such, appellant's
allegation must be analyzed under the tripartite analysis enunciated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976). Appellant has
the initial burden of proving, by a preponderance of the evidence,
a prima facie case of discrimination; the burden then shifts to the
employer to articulate some legitimate, nondiscriminatory reason for its
challenged action; and appellant must then prove, by a preponderance of
the evidence, that the legitimate reasons offered by the employer were
not its true reasons, but were a pretext for discrimination.
A prima facie case of reprisal is established by showing that (1) the
appellant engaged in protected activity; (2) the employer was aware of
the protected activity; (3) the appellant was subsequently subjected
to adverse treatment; and (4) the adverse action followed the protected
activity within such a period of time that a retaliatory motivation may
be inferred. Manoharan v. Columbia University College of Physicians
and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808
F.2d 493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783, 790
(D.C. Cir. 1984).
The above analytical paradigm need not be adhered to in all cases.
In appropriate circumstances, when the agency has established a
legitimate, nondiscriminatory reason for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has proven by
preponderant evidence that the agency's explanations were a pretext for
actions motivated by prohibited discriminatory animus. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-13 (1983).
Therefore, in the present case, the Commission will bypass the prima
facie stage of the analysis and focus on whether the agency's explanation
for not considering appellant for the Customer Service position was a
pretext for reprisal discrimination. We find that the preponderance of
the evidence supports the agency's contention that at the time C-1 was
placed into the Customer Service position, appellant was totally disabled.
Furthermore, there was no indication when, or if, he would ever return
to work. We find no persuasive evidence that the agency's articulated
reason was a pretext for discrimination based on reprisal.
REASONABLE ACCOMMODATION
EEOC Regulations provide that 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. �1614. 203(a)(1).
Major life activities include caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. �1614.203 (a)(3).
Federal agencies are prohibited from discriminating against qualified
individuals with disabilities. A federal agency must give full
consideration to the placement and advancement of qualified individuals
with disabilities and shall be a model employer of such individuals.
29 C.F.R. �1614.203(b). The agency must make a reasonable accommodation
to the known physical or mental limitations of a qualified employee with
a disability. The agency has the burden of establishing that either
no accommodation of appellant's disability is possible, or that the
suggested accommodation would impose an undue hardship on the agency.
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
A qualified employee with a disability is one who can safely perform
the essential functions of the position in question with or without a
reasonable accommodation. 29 C.F.R. �1614.203(a)(6). The term "position
in question," as contained in 29 C.F.R. �1614.203(a)(6), is not limited to
the position actually held by the employee, but also includes positions
that the employee could have held as a result of job restructuring or
reassignment. See 29 C.F.R. �1614.203 and 29 C.F.R. �1630.2(o)(2)(ii).
While Federal law does not require that an agency create a new position
for a disabled individual, the agency must consider reassignment to a
vacant position that the individual is qualified to perform. See Owens
v. USPS, EEOC Petition No. 03930129 (December 17, 1993).
After a careful review of the record, we find that appellant has not
established a prima facie case of being denied a reasonable accommodation.
Although there is no dispute that appellant is a person with a disability,
we find that he could not perform the essential functions of the Customer
Service position with or without an accommodation. As noted above, the
medical evidence of record indicates that appellant was totally disabled,
and unable to return to work.<3> Consequently, since appellant was
not a qualified individual with a disability, the agency was under no
obligation to reassign him to the Customer Service position.<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
OCT 8, 1998
___________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant did not raise disability discrimination in his request for
counseling, formal complaint, or affidavit; however, we, like the
agency, find that the issue of whether appellant was denied a
reasonable accommodation was also raised by the facts presented.
2Appellant had been treated for his impairment since January 1993.
According to the record, he underwent a period of remission from April
1993 until October 1994.
3When the agency placed C-1 in the Customer Service position on January 9,
1995, it was under the impression that appellant would have been available
on February 15, 1995. While the agency should have considered appellant
for the position, we note that had the agency consulted appellant's
physician in January 1995, he would have indicated that appellant was
not going to return to work on February 15 or thereafter. Consequently,
we find no violation of the Rehabilitation Act.
4The Commission notes that the arguments raised by appellant on appeal,
although not specifically addressed in this decision, were reviewed
and considered. We also note appellant's contention that his medical
documentation never indicated that he was "totally disabled from all work"
with the agency. A review of the medical evidence of record, however,
does not support appellant's position.