01992660
06-20-2002
Preston E. Turner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Preston E. Turner v. United States Postal Service
01992660
June 20, 2002
.
Preston E. Turner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01992660
Agency No. 1G-711-0006-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,<1>
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 joined the agency in 1984 as a Mail
Processor at the agency's Shreveport, Louisiana, facility. In 1991,
complainant was placed in the Computerized Forwarding System (CFS)
because his degenerative arthritis prevented him from performing the
essential functions of his Mail Processor position. At the time in
question, complainant had a temporary light duty assignment in the CFS
unit processing MUM (miscoded/uncoded mail). However, the agency deployed
an automatic remote video encoding system which eliminated the need for
employees to perform MUM duties. The agency then assigned complainant
to a light duty position in Automation. However, because complainant's
medical restrictions limited him from standing more than 2 to 4 hours
per day, he unable to perform the duties of this position for more than
4 hours per day.
Complainant sought EEO counseling and subsequently filed a formal
complaint on April 18, 1997, alleging that he was discriminated against on
the bases of race (African-American), disability (degenerative arthritis),
age (D.O.B. 6/11/47), and reprisal for prior EEO activity when his light
duty assignment in CFS was changed to a temporary light-duty assignment
in Automation and he was scheduled to work only 4 hours a day.
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 race, age or reprisal discrimination. The agency
found that complainant failed to demonstrate that others, not of his
race, were treated more favorably, or that age was a determining factor
in the agency's decision making. Further, the agency found that the time
period between complainant's prior protected activity and the complained
of actions was too great to draw an inference of retaliatory motive.
Regarding the basis of disability, the agency found that complainant
was a qualified individual with a disability, as defined by the
Rehabilitation Act, that he was therefore entitled to an accommodation,
and that the agency duly provided such an accommodation in the form of
his reassignment.
Complainant makes no arguments on appeal, but maintained during the
investigation that the agency could have provided him with 8 hours worth
of work within his medical restrictions. The agency requests that we
affirm its FAD.
ANALYSIS
We turn first to complainant's claim of disability discrimination.
Ordinarily, as a threshold matter, complainant must establish that he
is a �qualified individual with a disability� within the meaning of
the Rehabilitation Act. An �individual with disability� is a person
who has, has a record of, or is regarded as having a physical or mental
impairment which substantially limits one or more of that person's major
life activities, i.e., caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
See, 29 C.F.R. � 1630.2(j). An impairment is substantially limiting
when it prevents an individual from performing a major life activity or
when it significantly restricts the condition, manner, or duration under
which an individual can perform a major life activity. 29 C.F.R. �
1630.2(j). The individual's ability to perform a major life activity
must be restricted as compared to the ability of the average person in
the general population to perform the activity. Id.
Herein, however, we will assume that complainant is an individual with
a disability, since the agency has conceded that he is, finding that
his degenerative arthritis substantially limits his performance of
major life activities. Accordingly, the question becomes whether
complainant has met his burden of proof to establish that he is
a qualified individual with a disability within the meaning of the
Rehabilitation Act, i.e. an individual with a disability who, with or
without reasonable accommodation, can perform the essential functions
of the position in question.
An individual with a disability is "qualified� if he satisfies the
requisite skill, experience, education and other job-related requirements
of the employment position such individual holds or desires, and who,
with or without accommodation, can perform the essential functions of such
position." 29 C.F.R. � 1630.2(m); see also 29 C.F.R. � 1630.3 (exceptions
to definition). Therefore, in order to determine whether complainant is
�qualified,� it must be determined whether, with or without accommodation,
complainant could perform the essential functions of any position which
he could have held as a result of job restructuring or reassignment.
See Hawkins v. United States Postal Service, EEOC Petition No. 03990006
(February 11, 1999); Van Horn v. United States Postal Service, EEOC
Appeal No. 01960159 (October 23, 1998).
Here, the parties concur that complainant could no longer perform the
essential functions of the Mail Processor position he originally held.
Rather, complainant protests the fact that he was not reassigned
to a position the duties of which he could perform 8 hours per day.
Accordingly, we must determine whether or not complainant has shown by a
preponderance of the evidence that there was any vacant funded position
to which he could have been reassigned (rather than the position in
Automation) for which he was �qualified� and which he could perform for
8 hours a day.
We find that complainant failed to carry his burden of proof that there
was any such position. Complainant, a Union Steward (Exhibit 12), did
not claim that the agency erred in determining that there was no such
available position. Rather, complainant merely asserted that there was 8
or more hours worth of work within his medical limitations in Automation.
However, we note that the agency is not required to create a position
for complainant by accumulating various tasks from several positions and
assigning them to him. See Saul v. United States Postal Service, EEOC
Appeal No. 01970693 (May 10, 2001). Moreover, insofar as complainant
asked to do �mark-up� or �return to sender� duties, the evidence produced
by the agency, however, reveals that both of these jobs were automated
and therefore there was no position in which complainant could do as he
requested. Complainant has therefore not met his burden of demonstrating
that he was not granted a reasonable accommodation by the agency.
Lastly, we concur with the agency's conclusion regarding the remaining
bases of race, age and reprisal. Complainant has failed to demonstrate,
by a preponderance of the evidence, that the agency's actions were
motivated by discriminatory animus towards his protected classes.
Thus, 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 (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
June 20, 2002
__________________
Date
1 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.