01995465
04-11-2000
Peter D. Handwerker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Peter D. Handwerker, )
Complainant, )
) Appeal No. 01995465
v. ) Agency No. 1A-106-1032-96
) Hearing No. 160-96-8055X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<2> Complainant alleges he was
discriminated against on the basis of his physical disabilities (hearing
and vision impairments and diabetes) and in reprisal for prior protected
activity when the agency transferred him from his hand stamp bid. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that at the time of the alleged discrimination,
complainant was working as a Mailhandler who had held a hand stamp bid
for approximately thirty months at the agency's facility in Mount Vernon,
New York. On January 31, 1995, complainant was removed from this bid
and transferred into the empty equipment area allegedly because his
performance had become unacceptable. Complainant filed a formal EEO
complaint on March 22, 1995, alleging that the agency discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish that the agency was
obligated to provide any form of "reasonable accommodation" with regard to
complainant's transfer from the hand stamp bid position. In reaching this
conclusion, the AJ found that complainant failed to request a reasonable
accommodation prior to or at the time of his transfer. The AJ also found
that it would be "pure speculation" to infer from evidence of a subsequent
reasonable accommodation approximately two years later at a different
facility that the agency was obligated to provide one under the facts
of the instant claim. The AJ also concluded that complainant failed
to establish a prima facie case of retaliation since the responsible
management official (RMO) credibly testified that he had no knowledge
of complainant's prior protected activity. The agency's final decision
adopted the AJ's finding of no discrimination. It is from that final
decision complainant now appeals.
On appeal, complainant contends that the AJ's conclusions are based
on factual findings which are not supported by substantial evidence
in the record. Specifically, complainant argues that he requested
an accommodation when he repeatedly informed the RMO that he could
not hear him and consequently asked the RMO write instructions down.
Complainant also contends that the RMO was aware of complainant's prior
protected activity, and, in the alternative, that the AJ should have
construed complainant's requests for accommodation as protected activity.
Furthermore, complainant contends that his alleged poor performance was
a pretext for discrimination because there was no evidence in the record
to support the agency's claim that his performance was poor.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds no basis to
disturb the AJ's decision.
Without determining whether complainant is a qualified individual with
a disability within the meaning of the Rehabilitation Act, we begin by
noting that at no point during the hearing did complainant state that
he either asked for an accommodation or that he needed one.<3> Both
complainant's former supervisor and the RMO testified that complainant
was adamant about not being treated differently from other employees.
Complainant did testify that he informed the RMO that he could not
hear him because of the noise on the workroom floor. However, the RMO
testified that complainant resented it whenever he spoke to him and would
sometimes deliberately turn his hearing aid off to avoid hearing him.
Testimony at the hearing and evidence in the record support a finding
that when criticized by his supervisors about his poor performance,
namely that he worked too slowly to maintain acceptable production levels,
complainant would become belligerent and argumentative. Both the RMO and
his former supervisor testified that no matter how many times they spoke
to complainant, he refused to change his work habits. The RMO testified
that even after he enlisted the help of complainant's peers and the union
steward to encourage complainant to work more quickly and efficiently,
complainant remained obstinate and uncooperative. The RMO further
testified that complainant would threaten him with statements like,
"I'm going to get my lawyer," and accuse him of harassment. We note that
at no time during the hearing did complainant testify that he asked for
instructions in writing. While he argues this on appeal, we credit the
RMO's testimony and find the context of this so-called request was more
likely a threat to the RMO to put any orders in writing if he expected
a response from complainant. Based on a thorough review of the record,
we find that the AJ's determination that complainant never requested
anything that could reasonably be construed as an accommodation for his
disability while he held the hand stamp bid is supported by substantial
evidence in the record.
The Commission notes that as a general rule, a employer is not required
to ask whether a reasonable accommodation is needed when an employee
has not asked for one. 29 C.F.R. pt. 1630 app. � 1630.9. However an
employer should initiate the reasonable accommodation interactive
process without being asked if the employer: (1) knows that the employee
has a disability; (2) knows or has reason to know that the employee
is experiencing workplace problems because of the disability; and (3)
knows, or has reason to know, that the disability prevents the employee
from requesting a reasonable accommodation. If the employee states that
he does not need a reasonable accommodation, the employer will have
fulfilled its obligation. See EEOC Employment Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, question 39 at p. 51, (March 1, 1999).
We conclude that while the agency knew that complainant had disabilities,
there is no evidence to support a finding that his poor performance was
connected to his disabilities or that complainant wanted an accommodation
but was in some way prevented from requesting one. Management's testimony
supports a finding that complainant was unwilling to engage in any
rational dialogue about his performance and did not want to be treated
differently from other employees. Moreover, we find that there is no
evidence to support a finding that complainant needed an accommodation to
perform the essential functions of his job. Those functions included
daily calibration of the date stamp; stamping mail that could not
be processed automatically; and placing the date stamped mail in an
appropriate bin. Complainant's performance was found to be lacking
because he refused to stamp more than one piece of mail at a time even
after the RMO specifically showed him how to line up four to five letters
in a row and stamp them in rapid succession. His refusal to process
time sensitive mail quickly resulted in delayed production. We note
that at the hearing, complainant testified that he had no difficulty or
problem date stamping the mail in rapid succession and did so successfully
when the RMO showed him how to do it. Accordingly, we do not find that
complainant ever requested or needed a reasonable accommodation or that
the agency was obligated to inquire as to whether he did. We also agree
with the AJ's conclusion that it would be purely speculative to infer
that because complainant received reasonable accommodation two years
later, he required one at the time of the instant complaint.<4>
We further conclude that based on the standards set forth 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.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases), the AJ properly determined that complainant
failed to establish a prima facie case of retaliation. The AJ found that
despite contrary evidence in the investigative file, the RMO credibly
testified that he had no knowledge of complainant's prior protected
activity. We note that complainant himself testified that he could not
recall any of his prior protected activities. Moreover, based on our
finding that complainant did not ask for a reasonable accommodation,
complainant's argument that the request itself was protected activity
of which the RMO was aware fails. See 29 C.F.R. � 1630.12.
The Commission notes that the AJ did not address whether complainant was
discriminated against on the basis of his disabilities under a theory of
disparate treatment. Upon review, we find no evidence that similarly
situated employees without disabilities were treated more favorably
than complainant was when their performances were deemed unacceptable.
Even assuming that complainant had established a prima facie case of
discrimination or retaliation, we find the AJ's finding that complainant's
performance was unacceptable to be supported by substantial evidence
in the record. In reaching this conclusion, we credit the supervisor's
testimony and note that complainant did not refute the charge. Finally,
noting that management transferred complainant to a full time position
at the same pay rate and the RMO's sincere testimony that he transferred
complainant only after numerous attempts to encourage him to improve
his performance had failed, we concur with the AJ's finding that pretext
was not proven.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 11, 2000
_______________ _____________________
Date Carlton M. Hadden, Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found at the
Commission's website at www.eeoc.gov.
3 We note that the AJ accepted, without comment, the parties' stipulation
that complainant is a qualified individual with a disability, and that,
consequently, there is no evidence in the record which addresses that
issue.
4 While complainant contends that his performance improved after he
received accommodations from the agency at a different facility two years
later, we note that there is no evidence as to how these accommodations
enabled him to perform the essential functions of the hand stamp bid
in a more efficient manner. Furthermore, there is no evidence as to
whether his physical condition changed or whether the fact that he was
unemployed for thirteen months caused his attitude towards his performance
to improve.