0120083345
06-09-2010
Phillip W. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Phillip W. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120083345
Hearing No. 410200800118X
Agency No. 1H302001807
DECISION
On July 23, 2008, complainant filed an appeal from the agency's June
24, 2008 final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
Whether substantial evidence supports the EEOC Administrative Judge's
(AJ) finding that complainant was not subjected to discrimination when
he was denied a light-duty accommodation.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Mail Processing Clerk at the agency's North Metro, Georgia facility.
The Investigative Record reveals that complainant also suffered an
on-the-job injury on January 25, 2005. As a result of this injury,
complainant was placed on limited-duty. The record reflects that on June
8, 2006, complainant suffered an off-the-job injury in which he fell of
a ladder, resulting in a fractured heel and ankle. Due to this injury,
Complainant requested a light-duty assignment from the Supervisor of
Distribution Operations (S1) on September 14th, 2006. At the time of
his request, complainant was subject to 22 work restrictions. Complainant
informed S1 that pursuant to his physician's orders, he was required to
wear a boot for his ankle and heel injuries. The record indicates that at
the time complainant met with S1, we wore an open-toed boot to protect
his injured heel/ankle. S1 testified that either during a conversation
that occurred on September 14, 2006, or approximately two days later when
she spoke with complainant, she informed him that, according to agency
policy, employees were prohibited from working on the workroom floor in
open-toed footwear. The record indicates that complainant then informed
S1 that he had a leather covering that he could place over the open-toed
portion of the boot. The record shows, however, that complainant did not
subsequently demonstrate to S1 that he had complied with agency policy
by obtaining a closed-toe/leather covered boot.
S1 testified that she subsequently communicated with the Work-Status
Committee Coordinator (S2) to determine if there was work available
which did not exceed complainant's restrictions. The record reflects,
however, that S1 did not pursue this matter further because complainant's
open-toed boot was prohibited under agency policy, and this foreclosed all
light-duty work opportunities. Accordingly, S1 determined that as long as
complainant continued to wear non-compliant, open-toed footwear, he would
not be permitted to return to work pursuant to agency policy. Complainant
was subsequently informed that his light-duty request had been denied.
On April 17, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (White), sex (male),
color (White), and disability (heel and ankle) when:
1. The agency denied his request to work a light-duty position from
September 14, 2006 through March 19, 2007.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on May 7, 2008 and issued
a Bench Decision that same day. The agency subsequently issued a final
order on June 24, 2008 adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
AJ's DECISION
In her Bench Decision, the AJ, among other things, found that
complainant failed to establish a prima facie case of sex, race and
color discrimination because he failed to identify a similarly situated
comparator who was treated more favorably. Specifically, the AJ noted
that unlike complainant, his comparator did not wear an open-toed
boot when she made her light-duty assignment request. Moreover,
the AJ noted that the comparator requested an accommodation of not
standing for eight hours for four weeks, in contrast to complainant
accommodation request which consisted of twenty-two restrictions. Next,
the AJ found that assuming arguendo that complainant had established
prima facie cases of disability, sex, color and race discrimination,
the agency provided legitimate, nondiscriminatory reasons for its
decision to deny his light-duty request. Specifically, the AJ noted
that management informed complainant that his open-toed boot violated
agency safety policy, and this was the primary reason that his request
was denied. The AJ next determined that complainant failed to present
argument or evidence showing that the agency's reasons were a pretext for
illegal employment discrimination. Accordingly, the AJ concluded that
complainant had not shown that the agency subjected him to discrimination
on the stated bases.
CONTENTIONS ON APPEAL
Complainant does not submit arguments on appeal.
On appeal, the agency contends that substantial evidence supported
the AJ's finding that complainant was not discriminated against on the
basis of disability. The agency argues that the AJ properly found that
the agency's decision to deny complainant light-duty work was based on
legitimate, nondiscriminatory reasons. Specifically, the agency contends
that at the time of complainant's light-duty request, he wore an open-toed
boot, and he was informed that according to agency policy, employees
are prohibited from wearing open-toed footwear on the workroom floor.
Moreover, the agency contends that complainant failed to inform management
that he had subsequently switched to wearing a close-toed boot. Finally,
the agency contends that complainant failed to show that the comparator
was similarly situated. On these grounds, the agency asserts that agency's
final action implementing the AJ's decision should be affirmed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Denial of Reasonable Accommodation
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)
and (p). The Commission also notes that an employee must show a nexus
between the disabling condition and the requested accommodation.
See Wiggins v. United States Postal Serv., EEOC Appeal No. 01953715
(April 22,1997). As a threshold matter, complainant must establish that
she is an "individual with a disability."
Assuming arguendo that complainant is an individual with a disability,
we find that complainant was not qualified because he could not perform
the essential job functions required by his position. The record
indicates that there was no light-duty work available which would
have permitted complainant to work while wearing an open-toed boot.
S1 testified that at the time complainant made his light-duty request,
she observed that he was wearing an open-toed boot. S1 stated that she
informed complainant that, according to agency policy, employees were not
permitted on the workroom floor in open-toed footwear. Notwithstanding
complainant's prohibited footwear, S1 testified that she contacted S2 to
determine if there was light-duty work available that was permitted under
complainant's medical restrictions. Based on a review of complainant's
request, S2 determined that no work was available given complainant's
medical restrictions and prohibited footwear. The Work Status Committee
subsequently denied complainant's light-duty work request. S1 testified
that even with an accommodation, complainant would be prohibited from
working on the work-room floor in open-toed footwear according to agency
policy. S1 testified that subsequent to this notification, complainant did
not submit updated medical documentation or otherwise demonstrate that he
had obtained a closed-toe boot. Therefore, we find that complainant is
not a qualified individual with a disability because he could perform the
essential job functions required of the Mail Processing Clerk position;
therefore, we was not entitled to the accommodation that he requested.
Disparate Treatment - Race, Color, Sex, and Disability
Next, we consider whether the AJ properly determined that complainant had
not shown that the agency discriminated against him on the bases of sex,
race, and color. To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. 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).
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).
Assuming arguendo that complainant established prima facie cases
of race, color, sex and disability discrimination, we find that
the agency has offered legitimate, nondiscriminatory reasons for its
actions. Specifically, as addressed above, S1 testified that according to
agency policy, employees were not permitted to wear open-toed footwear
on the work-rook floor. The record indicates that complainant wore an
open-toed boot at the time of his light-duty request and failed, over the
course of approximately six months, to demonstrate or otherwise provide
any evidence that he no longer required an open-toed boot. In response,
complainant contends that the agency provided an African-American,
female comparator (C-1) with more favorable treatment when it granted
her request for a light-duty work schedule. The record indicates,
however, that C-1 was not similarly situated. Specifically, the record
indicates that unlike complainant, there is no evidence that C-1 wore
an open-toed boot at the time she made her light-duty request. Further,
S1 testified that unlike complainant, C-1 was not subject to similar
medical restrictions. Specifically, the record indicates that C-1's
only restriction consisted of not standing for eight hours in a given
work day. In contrast, the record indicates that complainant had
twenty-two medical restrictions. Accordingly, we concur with the AJ
that complainant failed to establish prima facie cases of race, color,
sex and disability discrimination because he failed to identify a
similarly situated comparator who was treated more favorably.
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 Order adopting the AJ's determination that complainant was not
subjected to unlawful discrimination as alleged.
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
_____06/09/10_____________
Date
2
0120083345
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083345