0120093652
08-22-2013
Richard Goodwin, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Richard Goodwin, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120093652
Agency No. 1C-192-0004-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 18, 2009, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant failed to demonstrate that he was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for a Casual position at the Agency's Philadelphia Bulk Mail Center in Philadelphia, Pennsylvania. The position description described the Casual position's duties as mail handling, mail processing, mail delivery, mail collection, mail transportation, and custodial functions, or a combination of such duties on a supplemental basis. Casuals employees also load, unload, and move bulk mail, empty mail from mail containers (bags, hampers, etc.), and perform other duties incidental to the moving and processing of mail and related mail handling equipment.
Complainant applied for the position in June 2008. He went for an interview and a physical and was required to provide information from his primary doctor. On June 25, 2008, Complainant completed a Self-Identification of Physical/Mental Disability. Complainant entered Code 89, which indicated that he was undergoing surgical and/or medical treatment. Medical information from the Complainant's physician dated July 2, 2008, disclosed that Complainant's was diagnosed with migraine headaches, depression with an onset in November 2007, cancer in November 2001 and insomnia with an onset in 2007. The information also indicated that Complainant was being treated with medication and the prognosis was good.
Complainant's information was forwarded to the District Reasonable Accommodation Committee (DRAC). Complainant was seen by the DRAC on February 19, 2008, though he did not request an accommodation. On April 7, 2009, the DRAC Chairperson sent Complainant a letter which indicated that he was not suitable for Casual employment because his medical documentation indicated that he was taking medication, that caused him to be lethargic and which could pose a safety and health risk. The medical documentation also indicated that Complainant was unable to hear in a noisy environment, and had frequent migraine headaches. The medical documentation was reviewed by an Agency physician and he agreed with the Complainant's physician that Complainant was a high risk for injury and was not medically qualified to perform the functions of the position.
In October 2008, Complainant submitted a second application. He also provided updated medical documentation from his doctor which he believed cleared him to do the job. The Agency however, indicated that no Casual positions were available at that time because of a hiring freeze due to the fact that all Casual positions were being eliminated.
On February 19, 2009, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of disability (Leukemia) when on or about November 8, 2008, he was denied employment based on his disability.
Following an investigation by the Agency, Complainant failed to request either a FAD or a hearing so a FAD was issued by the Agency. The FAD found that Complainant failed to show that he was subjected to discrimination. Specifically, the FAD found that assuming, arguendo, that Complainant established that he was an individual with a disability he failed to show that other applicants were treated more favorably. In fact, management explained that two other applicants were also found to not be medically qualified due to their failed drug screenings. Further, management indicated that regarding the issue of accommodation, Complainant did not request an accommodation and indicated that his medical conditions did not affect any major life activities.
Further, management indicated that it articulated a legitimate, non-discriminatory explanation for its actions, namely, that Complainant was not initially hired because he failed to pass his medical assessment and it was believed that he would not be able to perform the job duties without risk. This determination was made, in part, because of information provided by Complainant's doctor. Moreover, at the time of Complainant's second application, there was a hiring freeze due to the fact that Casual positions were being eliminated. The Agency found that Complainant failed to show that these legitimate, nondiscriminatory reasons were pretext for discrimination. Accordingly, the Agency determined that Complainant failed to show that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not provide a statement with his appeal.
The Agency, for the most part, reiterated the positions that it set forth in its FAD, and requested that the FAD be affirmed.
ANALYSIS AND FINDINGS
We find that even if we assume arguendo that Complainant is an individual with a disability, Complainant did not establish that he was discriminated against based on his disability. At the outset, we do not find that he was denied a reasonable accommodation. In this regard, we note that he never requested an accommodation. Likewise, when he initially applied for a Casual position, his medical documentation indicated that he was not qualified for the position. Subsequently, when he applied again and submitted updated medical documentation, Casuals were not being hired as there was a hiring freeze due to the elimination of the position. In addition to finding no denial of a reasonable accommodation, we find that Complainant has presented no persuasive evidence which indicates that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. The preponderance of the evidence of record does not establish that discrimination occurred. Accordingly, 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 (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 (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
___8/22/13_______________
Date
2
0120093652
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093652