0120090825
05-20-2009
Robert A. Chapa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert A. Chapa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090825
Agency No. 4G-770-0143-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 19, 2008 final decision concerning his equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a City Carrier at the agency's Bellaire Post Office in Bellaire, Texas.
On April 11, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (Asian/Latino), sex (male), and disability (Disabled Veteran/arm) when:
1. on January 7, 2008, he was not selected for an interview for the Associate Supervisor Program (ASP);
2. since on or about June 2, 2008, he has been forced to work beyond his medical restrictions; and
3. on May 27, 2008, he was issued a 7-Calendar day, no-time off suspension.1
The record reflects that by PS Form 2564-C "Withdrawal of Complaint of Discrimination," dated July 11, 2008, complainant withdrew claim 3 during the investigation.
At the conclusion of investigation concerning claims 1 - 2, complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On November 19, 2008, the agency issued the instant final decision.
In its November 19, 2008 final decision, the agency concluded that complainant failed to prove that he was subjected to discrimination as alleged. The agency determined that complainant did not establish a prima facie case of race, sex and disability discrimination.2 The agency further found that assuming, for the sake of argument, complainant established a prima facie case of race, sex and disability discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Regarding claim 1, the record reflects while 81 candidates, including complainant, applied for the ASP, 20 candidates were selected. The record further reflects that according to the ASP Consensus List of Ratings indicates that 12 candidates, including complainant, were rated as "no demonstration" of the Knowledge, Skills and Abilities (KSA) criteria. The Chairman of the Review Committee (C1) stated that applicants "had to pass a math and reasoning test before the board got involved. After the applicant passed those 2 tests, they were then required to take a writing test. If they pass the writing, their application was reviewed and had to have specific information for each KSA. If they met those criteria, they were interviewed for the position." C1 stated that while complainant qualified in the business mathematics, reasoning and writing tests, he did not demonstrate KSA's. Specifically, C1 stated that complainant "had one or more KSA's on his 991 application that did not address the requirement." Furthermore, C1 stated that complainant's race, sex and disability were not factors in his determination not to interview him for the ASP.
Regarding claim 2, complainant's supervisor (S1) stated that on June 2, 2008, complainant was assigned to deliver mail at a business on route 1007, and that this did not constitute an 'order.' S1 stated that the mail was of such a nature that he determined that complainant could handle the mail within his restrictions/limitations. S1 further stated that she does not recall complainant "stating that he could not deliver the mail given to him on this date. However, I do remember him complaining that he could not deliver mail I gave him on another date June 16, 2008. After his complaint I did assign the mail to another carrier." Furthermore, S1 stated that she did not discriminate against complainant based on his race, sex and disability.
The Postmaster (PM) stated that to his knowledge, complainant was assigned delivery duties by S1 "with the expectation that he would not use his right arm and would make whatever adjustments he needed to (i.e., breakdown bundles, lighten the size or weight of delivery method on the route) to enable him to assist the office without violating his restrictions. It is my understanding that at no time did the complainant express any disagreement on duties assigned to him nor did he make it known to any member of management that he could not perform within his restrictions." PM stated that according to complainant's Modified Assignment, it states that complainant's duties would include "other duties within restrictions as needed." Moreover, PM stated even though complainant was given an assignment to carry, "he was never encouraged or instructed to do so in violation to his medical condition to the best of my knowledge."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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).
The agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision concerning claims 1 - 2 because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 20, 2009
__________________
Date
1 The record reflects that claims 2 - 3 were later amended to the instant formal complaint.
2 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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0120090825
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090825