01983750
01-24-2000
Robert L. Ballas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Robert L. Ballas v. United States Postal Service
01983750
January 24, 2000
Robert L. Ballas, )
Complainant, )
) Appeal No. 01983750
v. ) Agency No. 4A-117-1017-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of age (DOB: 11/15/32), physical disability (Rheumatoid Arthritis)
and in retaliation for prior protected activity in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> Complainant alleges he was discriminated
against when on September 29, 1996, his supervisor informed him of five
changes to his work assignment. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the Commission
affirms the FAD as clarified herein.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk at the agency's facility in Lindenhurst, New
York. Complainant suffered from severe, rheumatoid arthritis. In 1994,
complainant submitted notes from his physician stating that his ability to
walk was limited and that he needed to avoid repetitive small hand joint
manipulation. Complainant specifically believed that he needed a telephone
on his desk to limit the amount of time spent walking. When management
refused to put a phone on his desk, complainant requested and management
granted him three months leave. Upon his return to his light duty work
assignment in October 1995, management required him to have a fitness
physical and made five changes to his work assignment, specifically:
(1) having work brought to complainant in lieu of his sweeping the clerk
cases; (2) eliminating his use of the telephone to contact customers;
(3) contacting the Computer Forwarding System Unit by documentation in
lieu of the telephone; (4) assisting him in getting questionable mail
pieces delivered; and (5) seating him in a work area where a telephone,
programmed with emergency numbers, would be less than twenty feet away.
Complainant has filed multiple EEO complaints concerning the telephone,
the leave, the fitness physical, constructive discharge and the work
assignment changes. At issue in this complaint, filed on January 2,
1996, are the work assignment changes. The agency originally dismissed
the complaint for failure to state a claim, but in Ballas v. United
States Postal Service, EEOC Appeal No. 01963991 (April 22, 1997), the
Commission found that the decision to no longer permit complainant
to use the telephone to contact customers could affect a term and
condition of his employment. At the conclusion of the investigation,
complainant requested that the agency issue a final agency decision.
Complainant now appeals from the FAD's finding of no discrimination.
Complainant did not submit a statement in support of his appeal.
The agency requests that we affirm its final decision.<2>
Reasonable Accommodation Discrimination under the Rehabilitation Act<3>
Federal agencies are required to provide reasonable accommodation to
qualified individuals with disabilities who are employees or applicants
for employment unless to do so would cause undue hardship. 29 C.F.R. �
1630.9(a). An employee is a qualified individual with a disability if the
employee has a disability which substantially limits one or more major
life activities but who can, with or without reasonable accommodation,
perform the essential functions of the position in question or the
essential functions of any position which he could have held as a result
of job restructuring or reassignment. 29 C.F.R. � 1630.2(m); Hawkins
v. United States Postal Service, EEOC Petition No. 03990006 (February
11, 1999). There is no dispute between the parties that complainant
is a qualified individual with a disability within the meaning of the
Rehabilitation Act.
Complainant asserts that the changes to his work assignment worsened
his condition and were against his doctor's orders, one of which was to
provide complainant with a phone. However, there is no evidence that
complainant required a phone to perform the essential functions of his
job, and by changing his work assignment, management guaranteed that
he would not need to use a telephone in the performance of his duties.
While the accommodation provided by the agency was not the accommodation
specifically requested by complainant, the agency was not required
to provide an accommodation preferred by complainant. Instead, any
effective accommodation by the agency was sufficient to satisfy its legal
obligation. See Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68
(1986); Brown v. United States Postal Service, EEOC Appeal No. 01971481
(July 30, 1999). We further note that complainant failed to adequately
explain his dissatisfaction with the changes, which were clearly designed
to limit the distances he would have to walk and ensure that if he had
a sudden reaction to his medication, he would be surrounded by people
who could help him. Therefore, the Commission finds that, in changing
complainant's work assignments, the agency did in fact reasonably
accommodate his disability in accordance with 29 C.F.R. � 1630.2(o).
Disparate Treatment Discrimination
Based on the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission finds
that complainant failed to establish prima facie cases of discrimination
or retaliation. Regarding retaliation, we note that although complainant
filed several EEO complaints of which his supervisor (CS) was aware, we do
not find that he was, in fact, adversely affected by management's actions.
CS stated that he made five changes to complainant's work assignment in
September 1995 in order to reduce complainant's ambulation and have him
in full view of other co-workers in case of an emergency caused by the
heavy medication complainant was taking. CS stated that he took this
action in an effort to accommodate complainant's medical condition upon
his return to work after a three month absence. Complainant was extremely
dissatisfied with the changes. However, he presents no credible evidence
as to how they adversely affected his employment or any other evidence
which, if left unexplained, would support an inference of retaliation.
Regarding age discrimination, complainant has failed to show that
similarly situated younger employees were treated less favorably than he
was, and there is no evidence in the record from which we can infer that
management was motivated by discriminatory animus towards complainant's
age. Regarding physical disability discrimination, complainant presents
no evidence to rebut CS's assertion that he arranged for the changes in
complainant's work assignment to accommodate the limitations indicated
by complainant's physician. Accordingly, we decline to infer that CS's
actions were motivated by discriminatory animus towards complainant's
disability.
Therefore, after a careful review of the record, including evidence not
specifically addressed in this decision, we affirm the FAD as clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
January 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
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 FAD incorrectly stated that in order to establish a prima facie case
of age discrimination, complainant must prove that age was a determinative
factor in the alleged discrimination. In order to establish a prima
facie case of age discrimination, complainant must present evidence, which
if left unexplained, would support an inference of age discrimination.
See Enforcement Guidance on O'Connor v. Consolidated Coin Caterers
Corp., EEOC Notice No. 915.002 (September 18, 1996). Once complainant
establishes a prima facie case, he must prove that "but for" his age,
the agency would not have discriminated. See Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979); Fodale v. Department of Health and Human Services,
EEOC Request No. 05960344 (October 16, 1998).
3 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 on EEOC's
website: WWW.EEOC.GOV.