0120112559
03-29-2013
Tracy L. Ferguson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Tracy L. Ferguson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120112559
Hearing No. 540-2010-00108X
Agency No. 4E-852-0027-10
DECISION
On April 14, 2011, Complainant filed an appeal from the Agency's March 11, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
1. Whether the Agency erred in dismissing several claims regarding workers' compensation and prior reassignment offers?
2. Whether the Agency erred in finding no discrimination on the bases of disability (back injury) and age (44) when it involuntarily reassigned Complainant from a full-time clerk to a part-time regular clerk who worked only 5 hours per week?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales and Service Distribution Associate at the Main Post Office in Tempe, Arizona. In the fall of 2009, the Agency began to downsize the ranks of the clerk craft because of declining mail volume. For affected clerical workers like Complainant, the Agency involuntarily reassigned them to other vacant positions.
Options for Reassignment (October 2009)
Before reassigning Complainant, the Agency identified 10 possible vacancies and asked Complainant to rank them in order of preference on October 9, 2009. Some vacancies allowed him to remain at his current facility, but work in the carrier craft. Others required him to work at other facilities in either the clerk, carrier, or custodian crafts. Complainant did not rank these options (marking them "N/A") because he believed, based on prior conversations with management, there would be part-time (36 hours per week) regular clerk positions available at the facility.
On October 21, 2009, the Agency identified 8 possible vacancies to reassign Complainant, and again asked him to rank them in order of preference. Complainant again declined to rank the options and marked each one "N/A."
Reassignment to Carrier Craft Position (November 2009)
On November 16, 2009, the Agency involuntarily reassigned Complainant to the carrier craft at the Main Post Office in Tempe, Arizona, effective January 2, 2010. Complainant did not want this reassignment. So two days later on November 18, 2009, he requested under the collective bargaining agreement to be assigned to a part-time regular position in the clerk craft. The Postmaster denied the request that same day, reasoning that the collective bargaining provision relied on by Complainant applied to reassignments to other facilities, not his current facility.
The following day, on November 19, 2009, Complainant requested leave because he injured his back on November 18, 2009.
Meanwhile, on November 24 and 27, the Agency notified Complainant that he had to qualify for the carrier craft reassignment by undergoing examinations, including a medical examination.
A Back Injury, A Modified Offer, and Changes in Reassignment (December 2009)
During the medical examination, Complainant told the doctor he had lower back and chest pains, which were sharp at times and occurred even at rest. Based on this information, the doctor concluded that Complainant should be limited to lifting no more than 20 pounds and that heavy exertion should also be limited.
On December 4, 2009, the Agency was notified about Complainant's physical restrictions. A week later, on December 11, 2009, the Agency offered him a limited duty assignment as a Sales and Services Associate at the Main Post Office in Tempe, Arizona, with a 20-pound lifting restriction. But then the Agency sent a new letter on December 15, 2009. Without reference to the pending limited duty offer, the December 15, 2009 letter explicitly rescinded the November 16, 2009 reassignment to the carrier craft, because Complainant no longer met the minimum requirements of a letter carrier. The December 15 letter offered him two new reassignment options: a clerk position at the Agency's Mesa Falcon Field facility; or a part-time (5 hours of work per week) regular clerk position at his current facility in Tempe, Arizona.
Initially Complainant chose to be reassigned to Mesa Falcon Field, so the Agency confirmed on December 22 that he would be reassigned there. But then Complainant changed his mind, after discovering that he would have to successfully learn two new schemes in the Mesa Falcon Field assignment, and that failing to learn those two schemes would result in his separation from the Agency. Complainant feared he would not be able to successfully learn the two schemes while trying to recover from his back injury.
So on December 24, 2009, he requested to stay at the Tempe facility as a part-time regular clerk working 5 hours per week, rather than be reassigned to the Mesa Falcon Field as a full time clerk who had to learn two new schemes. Management proceeded to create the position of part-time regular clerk at the Tempe facility for Complainant.
Part-time Regular Clerk at Tempe Facility
Complainant's involuntary reassignment to a part-time regular clerk working 5 hours per week at the Tempe facility became effective on January 2, 2010. But after only a couple of days, he took leave and enrolled in physical therapy over the next several months. During this time, the Department of Labor issued a decision, finding that there was not sufficient evidence to establish that Complainant sustained an on-the-job injury. On February 16, 2010, the Agency wrote to Complainant that it expected him to assume the full duties of his position without restriction.
After recovering from his injury, Complainant reported back to work on April 17, 2010. According to his appellate brief, he now works in a full-time letter carrier position in Texas.
EEO Complaint and Accepted Issues
On March 30, 2010, Complainant filed an EEO complaint, alleging that the Agency discriminated against him on the bases of disability (back), age (44), and reprisal when:
1. Effective January 2, 2010, he was involuntarily reassigned to a new part-time regular clerk position at Tempe in which he worked only 5 hours per week, while additional clerical work was available at the facility.
On April 22, 2010, the Agency accepted for investigation the claim that Complainant was discriminated against based on retaliation when, on December 24, 2009, he was issued a Letter of Warning.
The Agency dismissed several other claims for failure to state a claim. These claims were whether the Agency discriminated against Complainant on the bases of age (44) and physical disability (back) when:
2. On January 4, 2010, his new part-time regular position became effective in which he worked only 5 hours per week.
3. On November 11, 2009, the Agency offered him a custodian position, a Mesa Clerk position, or a 36-hour part-time regular position in Tempe, but was later told they were no longer available;
4. On November 19, 2009, he reported that he hurt his back, submitted a 3971 as an off-the-job injury, and management delayed his doctor visit by requiring him to write a statement.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing and moved for the AJ to amend the complaint to include the following claims: whether the Agency discriminated again him on the bases of disability (back) and age (44) when:
1. On November 19, 2009, management would not provide him a Form CA-1 (Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay Compensation) for his November 18, 2009 on-the-job injury, and he was not allowed to leave to see his doctor unless he stated his injury was not job-related;
2. On December 24, 2009, he was issued a letter of warning;
3. On January 4, 2010, his new part-time regular position became effective, working only 5 hours on Saturdays;
4. On an unspecified date, the Postmaster offered him a Glendale custodian job, a Mesa clerk job, or a 36-hour art-time regular job in Tempe, but was later told they were no longer available or held for other employees.
On October 20, 2010, the AJ granted, in part, the motion to amend the complaint to include the January 4, 2010 reassignment issue, but denied the motion to amend the other claims.
Therefore, the claims that were ultimately accepted for adjudication on the merits were:
1. Whether the Agency discriminated against Complainant on the basis of retaliation for prior EEO activity when, on December 24, 2009, the Agency issued him a letter of warning;
2. Whether the Agency discriminated against Complainant on the bases of disability (back injury) and age (44) when the Agency involuntarily reassigned him to a part-time regular clerical position at the Tempe facility, where he was limited to working only 5 hours per week.
Afterwards, the Agency moved for summary judgment, and Complainant withdrew his request for a hearing. Consequently, the Agency issued a final decision, pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Final Agency Decision
The final agency decision first dismissed the letter-of-warning claim because Complainant failed to allege that the letter was issued in retaliation for prior EEO activity. Rather, he alleged that the Agency issued the letter to discredit his on-the-job injury claim before the Department of Labor. Because Complainant was essentially alleging a collateral attack on the workers' compensation process, the Agency determined that Complainant failed to state a claim of retaliation for prior EEO activity, and dismissed it.
The Agency reaffirmed the previous dismissals of the other claims Complainant raised regarding the refusal to provide workers' compensation forms, and the November 11, 2009 reassignment offers.
The Agency next determined that Complainant failed to establish that he was an individual with a disability under the Rehabilitation Act. Because his physical limitations were transitory (lasting only about 5 months), the Agency determined that Complainant was neither an individual with an actual disability, nor regarded as an individual with a disability.
But even assuming that he was an individual with a disability whose back injury substantially limited him in the major life activity of lifting, the Agency determined that it reasonably accommodated him by reassigning him to the part-time regular clerk position in Tempe, Arizona. The accommodation was reasonable and effective because it adhered to his physical limitations, and Complainant requested this position after being notified about the work hours.
CONTENTIONS ON APPEAL
Complainant argues that the Agency and AJ erred in dismissing his claims concerning the events of November 19, 2009 involving his November 18, 2009 injury, and his not being allowed to leave to see his doctor unless he stated his injury was not job-related; and the Postmaster offering him a Glendale custodian job, a Mesa clerk job, or a 36-hour part-time regular job in Tempe, but his later being told they were no longer available or held for other employees.
Complainant concedes in his appellate brief that the Agency correctly dismissed his retaliation claim about the letter of warning because he did not engage in prior EEO activity. Because of Complainant's concession, we will not address the reprisal claim about the letter of warning.
For his involuntary reassignment claim, Complainant maintains that he was a "regarded" individual with a disability, who could have performed the duties of a full-time letter carrier position, but was denied reassignment to the carrier position because of the Agency's mistaken perception that he had a disability or impairment that prevented him from performing the essential functions of that position. As a result of this mistaken perception, the Agency forced him to accept a position with substantially reduced work hours, i.e., the 5-hour-per-week part-time regular clerk position at the Tempe, Arizona facility.
Similarly, with respect to disparate treatment on the basis of age, Complainant argues that he was treated differently from other clerical workers whose jobs were being eliminated, in that they were offered full-time positions, and he was not.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Upon review, we find that the Agency and the AJ did not err in dismissing the claims dealing with Complainant's attempt to get a workers' compensation form, and one of the numerous instances in which the Agency and Complainant attempted to find a reassignment position that suited his needs. The latter claim is essentially a part of his overall disparate treatment claim that he was denied certain positions that were available to other clerks who were not members of his protected class. We will address the issue below.
Disparate Treatment Regarding Involuntary Reassignment1
Complainant essentially maintains that he was subjected to disparate treatment on the bases of disability and age in that the Agency offered and reassigned non-disabled, younger clerical workers to full-time carrier positions at the Tempe, Arizona facility, while it denied him the same opportunities and reassigned him to a part-time regular clerical position in which he could only work 5 hours per week.
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v, Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Disability
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. Rehabilitation Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C. 791(g)); see also 29 C.F.R. � 1614.203(b). The ADA Amendments Act (ADAAA), Pub. L. 110-325, 122 Stat. 3553 (2008), became effective on January 1, 2009, and the Commission published revised regulations reflecting the ADAAA on March 25, 2011, 76 Fed. Reg. 16978. Because Complainant is challenging Agency actions that occurred in 2009, the ADAAA would apply to this case.
As a threshold matter, the first thing Complainant must do is establish that he is an individual with a disability, under the Rehabilitation Act. An individual with a disability is one who (1) has a physical or mental impairment that substantially limits a major life activity, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g).
Next, Complainant must show that he is a "qualified" individual with a disability, an "individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. � 1630.2(m).
For the sake of argument, the Commission will assume, without deciding, that Complainant was an individual with a disability, whose back injury substantially limited him in the major life activity of lifting because he could not lift more than 20 pounds during the relevant time period from November 18, 2009 to April 17, 2010.
We then determine whether he was a "qualified" individual with a disability who satisfied the requisite skill, experience, education, and other job-related requirements of the employment position he desired, and who, with or without a reasonable accommodation, could perform the essential functions of the desired position.
In the appellate brief, Complainant's representative maintains that Complainant was a qualified individual with a disability who could perform the essential functions of a full-time letter carrier. As evidence, Complainant's representative relies on the fact that Complainant eventually returned to work after April 17, 2010 with no physical restrictions and presently works as a full-time mail carrier in another state.
There are two flaws in this argument. First, the relevant time period when we must determine whether Complainant was a qualified individual with a disability was the period of time in which he was injured and had a 20-pound lifting restriction: November 18, 2009 to April 17, 2010.
Second, we note that Complainant's argument contains an unstated assumption: Complainant actually desired to be reassigned to a full-time carrier position during the relevant period of time when he had a back injury. Upon review, we find no evidence in the record that supports this unstated assumption.
* When the Agency initially informed Complainant it would reassign him to a carrier position on November 16, 2009, Complainant protested this reassignment, requesting instead to be reassigned to a part-time regular position in the clerk craft that would allow him to work 36 hours per week.
* The day after he injured his back, Complainant wrote that he verbally told the Postmaster on November 19, 2009 his preference to be reassigned to a custodian position at another facility, because it was closer to his brother's house.
* When that option did not appear to be available, Complainant then indicated his desire to work as a full-time clerk at the Mesa facility, only later to change his mind because he feared he would not be able to learn two new schemes.
Complainant has offered no evidence to demonstrate that he could perform the essential functions of a full-time carrier position when his back injury limited him to lifting no more than 20 pounds, or that he even desired to be reassigned to such a position during the relevant time period.
Because of this lack of evidence, we find that Complainant has failed to establish that he was a qualified individual with a disability under the Rehabilitation Act for the position of full-time carrier during the relevant time period. Therefore, we determine that the Agency did not discriminate against him on the basis of disability when it did not reassign him to a full-time carrier position during the period of his back injury and lifting restriction.
Age
For his age discrimination claim, Complainant's representative argues that Complainant was subjected to disparate treatment in that his younger co-workers, who initially had their original bid assignments eliminated, were offered full-time positions, whereas Complainant, who is over 40 years of age, was not similarly offered a full-time position.
We find no evidence in the record to support Complaint's argument. Instead, we determine that the Agency treated clerks at the facility consistently in that it offered Complainant and other clerks various opportunities to be reassigned to full-time positions. The record is replete with examples of the Agency offering full-time positions to Complainant:
* On October 9, 2009, it offered 10 positions to Complainant, which he did not want because he desired a part-time (36 hours per week) regular position as a clerk;
* On October 21, 2009, it offered 8 positions to Complainant, which he did not want because he desired a part-time (36 hours per week) regular position as a clerk;
* On November 16, 2009, it reassigned him to a full-time carrier position, which Complainant did not want because he still desired a part-time (36 hours per week) regular position as a clerk;
* On December 15, 2009, it offered a full-time clerk position at the Mesa facility, which Complainant did not want because he feared he would not be able to learn two new schemes.
Because we find that Complainant was treated similarly to other similarly situated clerks in that he was offered several full-time positions, we find that Complainant has failed to establish discrimination on the basis of age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision, finding no discrimination the bases alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
__3/29/13________________
Date
1 We note that in Ferguson v. U.S. Postal Serv., EEOC Appeal No. 0120113856 (Feb. 7, 2012), Complainant raised the same issue regarding his involuntarily reassignment, but in the context of a denial of reasonable accommodation claim. The Commission found that Complainant was not denied a reasonable accommodation in the form of a reassignment because he was not able to identify vacant-funded position to which he could have been reassigned.
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0120112559
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112559