0120110383
03-16-2011
Norman Mitchell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Norman Mitchell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120110383
Agency No. 1G-784-0005-10
DECISION
On September 30, 2010, Complainant timely filed an appeal from
the Agency's September 7, 2010, final decision concerning his equal
employment opportunity (EEO) complaint alleging 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency's
proffered explanation for removing him from his awarded bid position
was pretext for discrimination based on his race, age, and reprisal for
prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales, Service/Distribution Associate at the Agency's Processing
and Distribution Center in Corpus Christi, Texas. Report of Investigation
(ROI), Postmaster's Aff., at 2. On October 10, 2007, Complainant's doctor
submitted medical documentation to the Agency. ROI, Ex. 3, at 1. The
medical documentation noted that Complainant had physical restrictions
limiting him to four hours of standing with one hour of continuous
standing. Id. Complainant reportedly experienced pain in his feet and
ankles after standing for long periods of time. ROI, Postmaster's Aff.,
at 2. As a result, the Agency provided Complainant with a position that
allowed him to sit for extended periods of time. Complainant's Appeal
Brief, at 1.
After submitting a bid, on December 23, 2009, Complainant was awarded the
position of Sales, Service/Distribution Associate. ROI, Ex.4, at 1. Unlike
Complainant's previous position, the Sales, Service/Distribution Associate
position required standing for extended periods of time. ROI, Postmaster's
Aff., at 2. On December 29, 2009, the Postmaster sent Complainant a
letter requesting medical documentation to determine if he physically
could perform the duties of the Sales, Service/Distribution Associate
position. ROI, Ex. 6, at 1. The letter requested "medical [documentation]
indicating whether or not [Complainant would] be able to fully perform the
duties of the position with six months . . . ." ROI, Ex. 6, at 1. After
not submitting the requested documentation, Complainant received a second
letter dated January 7, 2010, noting, in pertinent part, that "failure
to provide the medical [documentation] within 10 days will result in
the removal from the position . . . ." ROI, Ex. 9, at 1. Subsequently,
Complainant received a third letter from the Postmaster dated January
27, 2010. ROI, Ex. 10, at 1. The letter noted that Complainant failed
to provide the above medical documentation and was being removed from
the Sales, Service/Distribution Associate position. Id.
On January 29, 2010, Complainant faxed the Postmaster medical
documentation dated October 10, 2007. ROI, Ex. 11. This documentation
made reference to the Complainant's previous position and past
physical limitations. Id. In response to Complainant's fax, the
Postmaster sent Complainant a letter on February 1, 2010, noting that
Complainant failed to submit medical documentation relevant to the
physical requirements of the Sales, Service/Distribution Associate
position. ROI, Ex. 13, at 1. Thereafter, Complainant was removed from
the Sales, Service/Distribution Associate position.
On April 26, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
age (69), and reprisal for prior protected EEO activity when on February
1, 2010, he was removed from the Sales, Service/Distribution Associate
position.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency noted that assuming, for the sake of argument,
that Complainant established a prima facie case of discrimination based
on race, age, and reprisal, it articulated legitimate, nondiscriminatory
reasons for its actions. Final Agency Decision, at 10. The Agency
noted that the Postmaster instructed Complainant to provide medical
documentation reflecting on his ability to perform the physical duties
of the Sales, Service/Distribution Associate position. Id. The Agency
noted that the medical documentation that Complainant did provide was
not relevant to the physical demands of the position. Id. The Agency
noted that the September 1, 1987, Burrus Memorandum of Understanding
(MOU) authorizes a supervisor to ask for medical documentation when an
employee with physical restrictions, such as Complainant, bids on a new
position. Id. The Agency also noted that the Sales, Service/Distribution
Associate position was more physically demanding than Complainant's
previous position. Id. at 11. Lastly, the Agency noted that Complainant
failed to establish that its reason for removing him from the position
was pretext for discrimination. Id. at 12.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he is not a light-duty employee
and not disabled as the Postmaster alleges. Complainant's Appeal Brief,
at 1. Further, Complainant contends that the Postmaster used outdated
medical information to remove him from the Sales, Service/Distribution
Associate position. Id. Complainant also contends that the Postmaster
was aware of his race, age, and prior EEO activity. Further, Complainant
contends that the Agency subjected him to ongoing harassment. Id. at 2.
STANDARD OF REVIEW
As this is an appeal from a decision 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). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corp. 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438
U.S. 567, 56 (1978). The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its action. Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has
met its burden, 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 Ctr. v. Hicks,
509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case
of discrimination based on race, age, and reprisal, we find that the
Agency has articulated legitimate, nondiscriminatory reasons for its
actions. The Agency explained that Complainant was removed from the Sales,
Service/Distribution Associate position because he did not timely submit
medical documentation showing that he could physically perform the duties
of the job.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for its actions for the alleged discriminatory events, Complainant
now bears the burden of establishing that the Agency's stated reasons
are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996). In an attempt to show pretext,
Complainant asserted that he is not a light-duty employee as the Agency
contends, and that the Postmaster used outdated medical information to
remove him from the position.
At all times, the ultimate burden of persuasion remains with Complainant
to demonstrate, by a preponderance of evidence, that the Agency's
proffered explanation was not the true reason for its actions, but that
the Agency acted on the basis of discriminatory animus. Complainant
failed to carry this burden. Even assuming that Complainant is not
a light-duty employee, there is no dispute that on October 10, 2007,
he was subject to physical restrictions that limited his ability to
continuously stand. ROI, Ex. 9, at 1. As a result of those physical
restrictions, the Agency provided Complainant with a position enabling
him to sit for extended periods of time. Complainant's Appeal brief,
at 1. Different than Complainant's previous position, the Sales,
Service/Distribution Associate position required the ability to stand
for extended periods of time. ROI, Ex. 7, at 5. There is no dispute that
Complainant failed to respond to the Postmaster's repeated requests
for relevant medical documentation pertaining to his ability to stand
for extended periods of time. We note that the Burrus MOU authorizes a
supervisor to ask for such medical documentation when an employee with
physical restrictions, such as Complainant, bids on a new position. ROI,
Ex. 18; see Riedel v. U.S. Postal Serv., EEOC Appeal No. 0120091601
(Oct. 5, 2010). Therefore, we find that Complainant has failed to
establish that the Agency's explanation for removing him from the Sales,
Service/Distribution Associate position was pretext for discrimination.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (S0610)
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 (Z0610)
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
March 16, 2011
Date
1 We note that Complainant for the first time on appeal asserts that
the Agency subjected him to harassment. The Commission has held that
new claims may not be raised for the first time on appeal. See Hubbard
v. Dep't of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004).
Should Complainant wish to pursue this claim, he must contact an EEO
Counselor within fifteen days of receiving this decision. For timeliness
purposes, the date of initial EEO Counselor contact will be deemed to
be the date on which this appeal was filed.
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0120110383
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110383