01A22321
03-04-2003
Larry Marcum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Larry Marcum v. United States Postal Service
01A22321
March 4, 2003
.
Larry Marcum,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A22321
Agency No. 1C-431-0024-01
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of 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.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Modified Mail
Processor/Distribution Clerk, PS-04, at the Processing and Distribution
Center in Columbus, Ohio, filed a formal EEO complaint with the agency
on February 26, 2001, alleging that the agency had discriminated against
him on the basis of disability (double knee replacement, right shoulder
sprain/strain, back lumbrosacaral sprain/strain) when: (1) he was denied
opportunities to work holidays and nights, and (2) on December 11, 2000,
he was denied overtime work.
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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of disability discrimination because he could not
show that he is a �qualified individual with a disability� within the
meaning of the Rehabilitation Act. The FAD also found that complainant
failed to show that he was treated less favorably than similarly situated
employees not in his protected group. The FAD found that the agency
articulated legitimate, nondiscriminatory reasons for its actions; namely,
although complainant used to get overtime �working up� the city mail,
the agency has acquired FSM-100 machines, which now perform the work
that complainant had previously performed on overtime. The supervisors
additionally stated that overtime is typically available in the 043 and
040 areas, which have the high cases, and complainant had stated that
he could not work on those cases. Further, the management officials
stated that junior clerks received overtime when complainant did not
because their restrictions allowed them to work in those areas in which
complainant could not work. The FAD concluded that complainant did not
meet his burden of establishing that the agency's reasons were pretexts
for disability discrimination. Complainant submits no brief on appeal.
The agency requests that we affirm its FAD.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a).
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999).
Complainant must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with, however, where the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a pretext
for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S. Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case
of disability discrimination, we find that the agency has articulated a
legitimate, nondiscriminatory reason for denying complainant opportunities
to work overtime, holidays and nights; namely, complainant has documented
restrictions which prohibit him from performing the only type of overtime
work that is available on his tour. Complainant's supervisors assert
that overtime and off days are scheduled due to volume of mail, and this
requires working with high cases, which complainant cannot do within
his medical restrictions. See Report of Investigation (ROI), at 14-16,
18-19, 21-22, 24, 26-27. Complainant's supervisor (S1) asserts that
although complainant's documentation says that intermittent standing is
permitted, complainant has said that it would be against his restrictions
to stand while casing mail. Id., at 24. Complainant does not contend
that despite his medical restrictions he is able to perform the overtime
work that was available on his tour. There is insufficient evidence in
the record to support a finding that the denial of overtime was based
upon discriminatory motives.
Reasonable Accommodation
We now turn to analyzing this case under a reasonable accommodation
framework. Under the Commission's regulations, if an agency conducts an
individualized assessment, and finds that a qualified individual with a
disability is able to participate in overtime in his area with or without
an accommodation, then the agency must provide reasonable accommodation
to the known physical and mental limitations of the individual unless
the agency can show that the accommodation would cause an undue hardship.
The obligation to make reasonable accommodation applies to all services
and programs provided in connection with employment. Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix to
29 C.F.R. � 1630.9.
In the instant case, the agency conducted an individualized assessment
of complainant and concluded that complainant's medical restrictions
rendered him unable to perform the only overtime work that was available
on his tour. The agency's assessment was based in part on complainant's
own assertion that he could not case mail while standing. There is no
evidence that complainant disputed that the overtime work on his tour
was outside of his medical restrictions, neither is there evidence that
complainant contended that he could perform the available overtime work
with a reasonable accommodation. There is also insufficient evidence
from which we can conclude that there overtime work available within
complainant's medical restrictions on another tour. Accordingly,
we decline to find that complainant has set forth sufficient evidence
from which we can conclude that he was denied an accommodation which
would have enabled him to enjoy a privilege or benefit of employment.
Cf. Spaulding v. United States Postal Service, EEOC Appeal No. 01982863
and 01991949-1953 (September 18, 2001); Gil v. United States Postal
Service, EEOC Appeal No. 01990675 (September 14, 2001). In reaching this
conclusion, we note that the record contains no evidence that the agency
has a policy of preventing Modified Mail Processors/Distribution Clerks
from working overtime, holidays or nights. Cf. Joch v. United States
Post al Service, EEOC Request No. 05971044 (June 29, 2000) (complainant
was denied reasonable accommodation where agency failed to consider
whether she could perform certain positions on which she bid, instead
applying a policy of automatically excluding modified duty employees
from bidding on unrestricted positions). There is also no evidence in
the record to indicate that complainant was precluded from bidding on
a position which would provide him with opportunities to work overtime,
holidays and nights. We therefore affirm the FAD.
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
March 4, 2003
__________________
Date