0320150014
03-01-2016
Sheldon M.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sheldon M.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 0320150014
MSPB No. SF0752120543I2
DECISION
On November 17, 2014, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Petitioner worked as a Mail Handler at the Agency's Los Angeles Processing and Distribution Center in Los Angeles, California (Los Angeles P&D). Petitioner alleged that the Agency discriminated against him on the basis of disability when the Agency placed him in a leave without pay (LWOP) status, effective April 27, 2012.
The record reflects that Petitioner was ordered to active duty service for the U.S. Army and deployed between July 2009 and March 2010. According to medical progress notes, by August 19, 2010, Petitioner's treating medical providers noted that he was suffering from military service connected disabilities. Petitioner had a combined disability rating of 100%. On December 16, 2011, referencing a 15 minute standing and walking restriction and a 15 pound lifting, pushing, pulling restriction, the Agency advised Petitioner that he would be placed into at LWOP status, effective January 15, 2012, unless it found work within his medical restrictions.
On January 26, 2012, Petitioner's physician updated his restriction to lifting no more than 15 pounds, and limited the duration of Petitioner's continuous standing, walking, and sitting to 30 minutes. On February 2, 2012, Petitioner was invited to participate in a District Reasonable Accommodation Committee (DRAC) interactive meeting to discuss his request for a reasonable accommodation in his Mail Handler position. Petitioner attended the meeting with his union representative. Pursuant to this meeting, the Agency determined that Petitioner could not safely perform the essential functions of his position based on the average weight of the mail trays and Petitioner's inability to rotate to other positions on the flat sorter as required. After reviewing all available vacant, funded positions the Agency determined that it was not able to place Petitioner into any other positions because of his 15 pound lifting restriction. By letter dated April 24, 2012, Petitioner was placed in a LWOP status, effective April 27, 2012.
Petitioner did not request a hearing and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency was able to establish by preponderant evidence that it had legitimate concerns that Petitioner's medical conditions made his continued presence as a Mail Handler inappropriate. Additionally, the decision held that while Petitioner presented sufficient evidence to establish that he was an individual with a disability, he failed to show that he was a qualified individual with a disability because he was unable to prove that he could perform the essential functions of the Mail Handler position with or without an accommodation. Petitioner sought review by the full MSPB Board (the Board), and in a decision dated October 17, 2014, the Board denied the petition and affirmed the AJ's initial decision. Petitioner then filed the instant petition.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
The Commission finds that the MSPB's decision in the instant matter constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on disability, the Agency provided legitimate, non-discriminatory reasons for placing him into a LWOP status. Petitioner presented no persuasive evidence of discriminatory animus surrounding the change in pay status. The record evidence clearly establishes that the Agency engaged in the interactive process with Petitioner in an effort to find a suitable position taking his medical restrictions into account. Petitioner did not dispute the existence of any of his asserted physical limitations.
With respect to Petitioner's allegation that he was treated in a disparate manner compare to three Agency employees, we find the comparisons to be displaced. The first alleged comparator was issued a modified work assignment for a few months to address a temporary restriction, while Petitioner's physical restriction is ongoing. In the case of the other two alleged comparators, Petitioner failed to adequately address their physical limitations and the modifications made to their work assignments, therefore he is unable to establish that he is similarly situated to either of them. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to suspend him indefinitely was based on any purported disability.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__3/1/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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