0120083496
01-15-2009
Robert R. Klein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert R. Klein,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083496
Agency No. 1E-641-0025-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 14, 2008 final decision concerning his
equal employment opportunity (EEO) complaint claiming unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as an Electronic
Technician, PS-11, at the agency's Kansas City Processing and Distribution
Center in Kansas City, Missouri.
On July 17, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of disability (lower back, both knees) and age (43) when:
(1) on February 26, 2007, he was not considered for an EAS position;
(2) from February 2005 to February 2007, he was not reasonably
accommodated when he was denied Light Duty; and
(3) on a continuous basis, including July 2007, he has been denied the
training required to do his job.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its July 14, 2008 final decision, the agency found no discrimination.
Specifically, the agency found that complainant did not establish a prima
facie case of age discrimination because he failed to produce evidence
of any similarly situated employees who, under the same or similar
circumstances, were treated more favorably. Regarding the basis of
disability, the agency found that complainant failed to establish a prima
facie case of disability discrimination because he failed to show that he
was substantially limited in a major life activity.1 The agency concluded
that complainant failed to show that he was a qualified individual with
a disability as defined by the Rehabilitation Act. The agency further
found that assuming, for the sake of argument, complainant established
a prima facie case of age and disability discrimination, management
articulated legitimate, nondiscriminatory reasons for its actions which
complainant failed to show were a pretext.
Regarding claim (1), the Manager, Maintenance (MM) stated that he was
the selecting official for the EAS position to which complainant alleged
he applied. MM further stated that complainant's name was not submitted
to him for consideration.
The Acting Human Resources Specialist (S1) stated that her sole role
relating to the subject position was to enter the posting information
into the Vacancy Announcement Management System, and submit it to the
Area Human Resources Department for approval and posting. S1 further
stated "I have no documents with the Complainant's name on them."
Regarding claim (2), the Supervisor Maintenance Operations (SMO)
stated that he never denied complainant's Light Duty request because
complainant "never submitted any documentation listing a medical
condition/impairment." SMO further stated "I could not give him light
duty without knowing his restrictions."
Regarding claim (3), the Manager, Maintenance Operations (MMO)
denied complainant's claim that he was denied training to do his
job on a continuous basis. MMO further stated that complainant "has
been an electronic technician for a number of years and he met the
training requirements to qualify for the position several years ago."
MMO stated that he used the collective bargaining agreement and the
needs of operations in deciding who would attend training. MMO stated
that complainant was originally scheduled to attend Delivery Bar Code
Sorter (DBCS) training for four weeks in February 2006, but that he
was rescheduled to attend the training in November 2007. Specifically,
MMO stated "due to the fact [complainant] had missed approximately fifty
percent of his scheduled work days and considering the training cost,
roughly $3000, not including wages, I concluded it was in the best
interest of the Postal Service and [Complainant] to assign another
electronic technician to the DBCS training scheduled for 2/26/06."
MMO stated "during the 26 months [complainant] worked for [SMO] he was
in resident training more than 2 months."
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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not prove,
by a preponderance of the evidence, were a pretext for discrimination.
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 because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 15, 2009
__________________
Date
1 The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
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0120083496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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