01a03169
08-25-2000
Willie C. Howard, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Willie C. Howard v. United States Postal Service
01A03169
August 25, 2000
Willie C. Howard, )
Complainant, )
) Appeal No. 01A03169
v. ) Agency No. 4H-320-0154-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. (the Act).<1> The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at and hereinafter
referred to as 29 C.F.R. � 1614.405). Complainant alleged that he was
discriminated against on the basis of physical disability (degenerative
knee disease) when, on May 3 and 12, 1999, complainant's request for
transfers to Daytona Beach, Florida, were denied. For the following
reasons, the Commission AFFIRMS the agency's final decision.
At the time of this complaint, the record reveals that complainant was a
Limited-Duty Clerk, PS-5, at the agency's Trenton, New Jersey facility,
where he filed a formal EEO complaint alleging that the agency had
discriminated against him as referenced above. Complainant, a native of
Daytona, requested hardship transfers alleging that for health reasons
he needed to be in a warmer climate after having relocated his family to
the area.<2> After being denied the transfers, complainant requested
an accommodation in consideration of the fact that his impairment
does not allow him to stand for prolonged periods of time. The record
shows that one of the complainant's knees has been reconstructed and
the other knee has a great deal of cartilage and bone missing from the
back of his patella. Complainant believes that applicants were being
hired and transfer requests were being granted at the same time his
requests for transfers were being denied. At the conclusion of the
investigation, complainant was provided a copy of the investigative
report. When complainant failed to respond within the specified time
period, the agency issued a final decision.
In its final decision, the agency concluded that the evidence of record
did not support complainant's claim that he was disabled in accordance
with the Rehabilitation Act. The agency found that although complainant
was unable to perform the duties of his original Letter Carrier position,
complainant was not unable to perform a class of jobs in accordance
with the Act. Even assuming complainant was found to be disabled,
the agency concluded that the evidence of record did not show that
he was discriminated against. Rather, the record showed that one
of the Daytona Beach Postmasters (Postmaster 1) denied complainant's
request for a transfer because there were no positions available within
complainant's limitations. The second Postmaster (Postmaster 2) denied
complainant's request because there were simply no positions available.
The agency stated that to transfer complainant when no position was
available would have posed an undue hardship on the receiving facility.
Moreover, the record shows that the agency, in fact, accommodated
complainant's disability by placing him in a modified Clerk position in
the New Jersey facility where complainant worked. On appeal, the agency
stands on the record and requests that the Commission affirm its FAD.
Complainant has not submitted any contentions on appeal.
To establish a prima facie case of disparate treatment based on
disability, complainant must show that: (1) he meets the regulatory
definition of a person with a disability, 29 C.F.R. � 1630.2(g);<3> (2)
he is a qualified person with a disability, 29 C.F.R. � 1630.2(m); and
(3) he was subjected to an adverse employment action under circumstances
giving rise to an inference of discrimination, i.e. complainant must
make a plausible showing that there is a nexus between the disabling
condition and the disputed adverse action. See Prewitt v. United States
Postal Service, 662 F.2d 292 (5th Cir. 1981); Visage v. Department of
the Air Force, EEOC Request No. 05940993 (July 10, 1995). Even assuming
complainant did establish a prima facie case of disability discrimination,
the Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination.
In the alternative, the complainant alleges that the agency failed to
accommodate his disability by refusing to grant the hardship transfer
requests. The record shows that the agency provided complainant an
accommodation by placing him in a modified clerk position in the New
Jersey facility where complainant worked. Even assuming complainant
were protected under the Act, the employer may choose among reasonable
accommodations as long as the chosen accommodation is effective. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, Number 915.002 (March 1, 1999)
(Guidance) Guidance at 17. The employer is not required to provide the
reasonable accommodation that the individual wants. Guidance at 17-18.
Therefore, after a careful review of the record, the agency's response,
and arguments and evidence not specifically discussed in this decision,
the Commission AFFIRMS the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 25, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
1On 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: www.eeoc.gov.
2 The medical evidence of record makes no mention of a medical necessity
that complainant work in a warmer climate.
3The 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 .