01a44434
02-11-2005
Simon A. Kallungal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Simon A. Kallungal v. United States Postal Service
01A44434
February 11, 2005
.
Simon A. Kallungal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44434
Agency No. 1K-209-0003-03
Hearing No. 120-2003-00518X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant, a Mail Processing Clerk, PS-05, at the agency's Suburban
Processing and Distribution Center in Gaithersburg, Maryland, filed a
formal EEO complaint on December 5, 2002. Therein, complainant claimed
that agency discriminated against him on the bases of national origin
(India) and disability (deafness) when:
on July 19, 2002, he was notified that he failed the agency examination
for which the agency failed to afford him an interpreter and more time.
The record reveals that complainant applied for the position of
Maintenance Support Clerk; and that complainant was notified that in
response to his application, he was scheduled to take the CBT 710
Clerical Abilities Examination on July 15, 2002. On July 15, 2002,
complainant took the CBT 710 Examination. Complainant was provided with
an interpreter for the oral sections of the examination; and received a
final score of �ineligible.� The record reveals that complainant claimed
that his disability became a factor when the agency did not provide
him with an extension of time and did not administer the examination in
English as a Second Language (ESL).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency thereafter filed a Motion to
Dismiss or in the alternative, a Motion for Decision Without a Hearing.
In its motion, the agency urged the AJ to issue a decision without a
hearing in favor of the agency, finding no discrimination. Regarding the
disability claim, the agency argued that complainant was not a qualified
individual with a disability because as complainant himself acknowledged,
he was unable to meet the time restraints of the examination, with or
without reasonable accommodation. The agency argued that applicants for
the subject position must pass the CBT 710 Examination to be considered
for the position of Maintenance Support Clerk. The agency submitted a
copy of the affidavit from the agency Psychologist who is responsible
for developing valid selection instructions. In her affidavit, the
Psychologist stated that the CBT 710 Examination is given to applicants
for the purpose of measuring job-related Knowledge, Skills and Abilities
(KSAs); and that the examination consists of two parts, identified as Part
A and Part B. The Psychologist stated that Part A includes sequencing;
comparisons; spelling and mathematics computation; and that Part B
includes following written instructions; grammar and punctuation;
vocabulary; and reading comprehension. The Psychologist stated the
�primary factor being assessed in the Sequencing, Comparisons and
Spelling portion of the examination is perceptual speed and accuracy.�
The Psychologist stated speed �is being tested, to extend or eliminate
the time requirement would render the examination results useless and
negatively impact the Postal Service's ability to objectively determine
the potential success of an applicant.�
The agency argues that assuming arguendo that complainant is an individual
with a disability, his reasonable accommodation claim must fail because
the agency accommodated his known disability (hearing loss) when it
provided him with an interpreter for the oral parts of the CBT 710
Examination. <1> While complainant claims that the examination should
have been designed for ESL, the agency argued that he failed to proffer
evidence showing ESL is a disability. The agency further argued that
complainant failed to proffer evidence establishing individuals who
communicate in ESL are per se disabled. The agency argued that it
met its obligations under the Rehabilitation Act when it accommodated
complainant's hearing loss by providing an interpreter for the oral parts
of the examination. Regarding complainant's claim that the agency should
have waived the requirements of the examination, the agency argued that
the examination could not be waived because it tested skills and abilities
considered pre-requisites for the position of Maintenance Support Clerk.
Regarding complainant's national origin claim, the agency argued that
complainant failed to establish a prima facie case of national origin
discrimination. The agency found that complainant did not demonstrate
that similarly situated employees, not in complainant's protected
classes, were treated more favorably under similar circumstances.
Moreover, the agency argued that assuming arguendo complainant did
establish a prima face case, management articulated legitimate reasons
for its employment actions. The agency noted that in her affidavit,
a Human Resources Specialist stated that she provided complainant with
an interpreter for the CBT 710 Examination on July 15, 2002. The agency
further noted that in support of her contentions, the Human Resources
Specialist submitted a copy of an invoice from American Sign Language
Interpreters, LCC for their interpreting services on July 15, 2002.
The agency further argued that it could neither extend the allotted time
of the examination nor waive the requirements of the examination because
this would result in a score that did not accurately measure the skills
and abilities considered a pre-requisite for the position of Maintenance
Support Clerk. The agency argued that to design the test for ESL would
be an unreasonable accommodation because the examination is designed to
test certain knowledge, skills and abilities tantamount to the position of
Maintenance Support Clerk. Finally, the agency argued that complainant
did not establish that more likely than not, management's articulated
reasons were a pretext to mask unlawful discrimination.
On February 12, 2004, the AJ granted the agency's motion to dismiss.
The AJ determined that the agency properly set forth the undisputed
facts and applicable law in its �United States Postal Service Motion for
Decision Without a Hearing,� incorporated the Motion in his decision, and
found no discrimination. In so finding, the AJ found that complainant
failed to establish a prima facie case of national origin because he
failed to proffer evidence to establish that similarly situated employees
outside of his protected classes were treated more favorably in regard
to taking the CBT 710 Examination by either being excused from taking
the examination altogether or given more time or having it administered
in ESL.
With respect to complainant's disability claim, the AJ assumed
for purposes of his decision that complainant, as a result of being
hearing impaired, established that he was a qualified individual with a
disability. The AJ, however, found that complainant failed to establish
a prima face case of disability discrimination because he failed to
proffer evidence to establish that non-disabled employees outside of
his protected classes were treated more favorably concerning the CBT
710 Examination by either being excused from taking the examination
altogether or given more time or having it administered in ESL.
Furthermore, the AJ found that complainant may still be able to establish
a prima facie case of disability discrimination if the agency failed to
make a needed reasonable accommodation resulting in adverse treatment.
The AJ noted that a review of the record reveals that complainant sent
letters to the agency requesting accommodation when taking CBT 710
Examination. The AJ further noted that the agency provided complainant
with an American Sign Language interpreter for the oral portion of the
CBT 710 Examination. The AJ, however, noted in the agency's motion,
complainant requested the agency provide him with additional accommodation
by either waiving the examination, extending the allotted time of the
examination, or providing the examination in ESL. The AJ, therefore,
found complainant's requested accommodations were not reasonable. The AJ
noted in her letter to complainant dated July 11, 2002, the Manager,
Human Resources stated the CBT 710 Examination �is intended to measure
speed of performance, the allowance of more time is not appropriate.�
The AJ further noted that the Manager, Human Resources stated �such an
accommodation would render the test score useless as indicator of true
ability when compared to the scores of those who took the test under
stricter time limits.�
Regarding complainant's request for the examination to be in ESL, the AJ
determined that his request would render the test useless in regard to
testing the applicants for their ability to follow written instructions;
grammar and punctuation; vocabulary; and reading comprehension. The AJ
further determined that he had no knowledge of any authority which
states the Rehabilitation Act requires an employer to provide a written
examination in any language other than standard English. Finally,
the AJ determined that complainant's requested accommodations were not
reasonable and that the agency did not violate the Rehabilitation Act
by refusing to provide them to complainant.
The agency did not issue a final decision. Because the agency did not
issue a final order within forty days of receipt of the AJ's decision,
the Commission determines that the AJ's decision is the final action of
the agency. 29 C.F.R. � 1614.109(i).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
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).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 11, 2005
__________________
Date
1The Commission presumes for the purposes of
analysis only, and without so finding, that complainant is an individual
with a disability.