0120091275
05-29-2009
Keith A. Fields, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keith A. Fields,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091275
Agency No. 1K-211-0047-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 12, 2008 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Mail Processing Clerk, PS-05, at the agency's Incoming Mail Facility in Linthicum, Maryland.
On June 27, 2007, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On October 15, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (African-American), color (brown), disability (left knee and stress), and age (49) when:
(1) on or around the beginning of June 2007, he was instructed to submit medical documentation;
(2) on June 22, 2007, he was told to leave the building immediately and he was denied a union steward;1 and
(3) on an unspecified date, he was denied a reasonable accommodation.2
After the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On November 14, 2008, the AJ issued an order, dismissing the formal complaint from the hearing process. In his Order, the AJ concluded that because complainant failed to show cause for his failure to file timely pre-hearing submissions and follow the AJ's orders, he remanded the case to the agency for issuance of a final decision. Therefore, the agency issued the instant final decision on December 12, 2008.
In its December 12, 2008 final decision, the agency dismissed claim (3) on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency stated that complainant alleged that the denial of reasonable accommodation has been "ongoing for about 7 years." The agency determined that complainant's initial EEO contact occurred on June 27, 2007, which it found to be beyond the 45-day limitation period. The agency further determined that complainant had or should have had reasonable suspicion of unlawful employment discrimination prior to his June 27, 2007 EEO contact. Moreover, the agency determined that complainant was familiar with the 45-day limitation period because he had represented others in the EEO process.
The agency then addressed claims (1) - (3) on the merits, finding no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of race, color and age discrimination. Regarding the basis of disability, the agency found that complainant failed to establish a prima facie case of disability discrimination because he did not show that he was substantially limited in a major life activity. The agency concluded that complainant failed to show that he was a qualified individual with a disability as defined by the Rehabilitation Act. The agency further found that assuming, for the sake of argument, that complainant established a prima facie case of race, color, disability and age discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.3
Complainant's supervisor (S1) stated that in regard to claim (1), she became aware of complainant's alleged physical condition when she researched his medical file, but noted that there was no mention of any mental impairment. S1 further stated that she did not become aware of an alleged second injury in 2001 until she attended a redress mediation with complainant concerning the instant formal complaint. S1 stated that anytime an employee claims that he unable to perform his regular duties due to an accident or a medical condition, medical documentation must support the claim. S1 stated that she requested medical documentation from complainant and that his race, color, disability and age were not factors in her determination to request the documentation.
MDO stated that in regard to claim (1), prior to June 22, 2007, complainant was asked to submit medical documentation "because as a light duty employee, I need to know what his restrictions are so that I can provide him with a light duty assignment. At this point, we were tying to determine our obligation and because he did not have an open claim with OWCP, his restrictions would have to be light duty, non job-related and this gentleman refused to bring back documentation." Furthermore, MDO stated that she did not discriminate against complainant based on his race, color, disability and age.
Regarding claim (2), S1 stated that complainant was asked to leave the building immediately because he did not comply with management's orders to submit medical documentation. S1 stated that complainant was instructed by the Manager, Distribution Operations (MDO) on or about the first week in June 2007, to submit updated medical CA-17 or sufficient documentation to support his injury; that complainant was given two weeks to submit documentation; and that he failed to provide any documentation. S1 further stated "without knowing what this employee's medical limitations were, the organization cannot allow him to work. He was given ample time to supply management with appropriated medical documentation. He failed to comply and was told until such documentation was submitted, he would not be allowed to work." Furthermore, S1 stated that complainant "was not denied a shop steward nor did he request one."
Regarding claim (2), MDO stated that she asked S1 if complainant had updated his medical documentation and "she said that he had not. At that point, I instructed [S1] that if the documentation is not there we do not know what restrictions are there. We cannot in our right minds work this gentleman without knowing what he can and cannot do. Because he failed to turn in the documentation, he was asked to leave the building." With respect to complainant's allegation that he was denied a union steward, MDO stated "I am not aware of this."
Regarding claim (3), S1 denied complainant's claim that complainant was denied a reasonable accommodation. S1 further stated that complainant "has not submitted documentation of any kind to define what his medical limitations are." S1 stated that reasonable accommodation is granted to who employees "who submit appropriate documentation." Furthermore, S1 stated "I have no personal knowledge of any other employees denied reasonable accommodation if they submitted appropriate paperwork."
A claim of disparate treatment is examined under the three-party 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 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. See 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. See 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. See 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. See 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).
The agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
Further, to the extent that complainant is alleging that the agency failed to provide him with a reasonable accommodation, we note that under the Commission's regulations, an agency is required to make reasonable accommodation to 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), 1630.2(p). We also note that when an individual's disability or need for reasonable accommodation is not obvious, and he or she fails to provide reasonable documentation requested by the employer, then the employer will not be held liable for failure to provide the requested accommodation. EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the American with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002), Question 6. Here, we find complainant repeatedly failed to respond to the agency's requests for updated medical documentation. As such, we concur with the agency's finding that complainant's allegation that he was denied a reasonable accommodation was the result of complainant's failure to provide the requested documentation. Accordingly, we concur with the agency's finding that complainant failed to show that agency violated the Rehabilitation Act.
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the agency's finding of no discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's finding of no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 29, 2009
__________________
Date
1 The record reflects that complainant filed a grievance concerning his emergency off-duty status. On February 5, 2008, complainant's grievance was settled, and as a result, complainant was allowed to return to work immediately and paid for all back pay, seniority and benefits related to the action; and the emergency off-duty status was to be expunged from his record.
2 In its final decision, the agency concluded that because complainant did not provide a sworn affidavit, information from the instant complaint and PS Form 2564-A had to be used to construct his claim concerning denial of a reasonable accommodation.
3 The Commission presumes for purposes of analysis only, and without so finding, that complainant is an individual with a disability.
4 Because we affirm the agency's finding of no discrimination on the merits for the reasons stated herein, we find it unnecessary to address the disposition of claim (3) on procedural grounds (i.e., untimely EEO Counselor contact).
??
??
??
??
2
0120091275
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091275