Peter D. Handwerker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01995465 (E.E.O.C. Apr. 11, 2000)

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.