0120122518
11-09-2012
Andre Wiggins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Andre Wiggins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120122518
Agency No. 4C140004611
DECISION
On May 16, 2012, Complainant filed an appeal from the Agency's April 20, 2012, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e 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
Whether Complainant established by a preponderance of the evidence that the Agency discriminated and failed to accommodate his disability as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Central Park Station, in Buffalo, New York. On September 28, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity when:
1. On June 13, 2011, the Line of Travel (LOT) on Complainant's route was changed; and
2. On June 13, 2011, Complainant was denied a reasonable accommodation when he was not allowed to use a cart to carry outgoing mail, white buckets and trays, to ease the carrying/lifting on his injuries.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
With regard to claim 1, the Agency found that on June 13, 2011, Manager, Customer Services (MCS) conducted a "3999 inspection" on Complainant's route, which was randomly chosen. During the inspection, MCS told Complainant his route was not efficient. Complainant stated that MCS informed him that MCS believed that Complainant could carry the entire load without returning to his vehicle, so MCS changed Complainant's route/park points without discussion.1
In August, 2011, Complainant asked MCS to change his route in order to reduce the number of stairs he was required to climb. MCS modified his route by removing addresses with stairs and adding other addresses without stairs.
With regard to claim 2, the Agency found that on June 13, 2011, Complainant alleged that he was denied a reasonable accommodation when he was not allowed to use a cart to carry outgoing mail, white buckets and trays to ease the carrying/lifting on his injuries. Complainant testified that he asked MCS if he could use a cart to carry in his work load because of his impairments. MCS told Complainant that the cart would cause Complainant to make an unnecessary trip and MCS believed Complainant could carry all the equipment without the use of the cart. When Complainant told MCS that he had a back impairment, MCS responded that everyone had back problems and instructed Complainant not to use the cart. Complainant also alleged that MCS requested that he carry magazines on his arm, which violated the rules. Complainant stated he discussed potential weight limits with MCS, who told Complainant he would bring a scale to the next route inspection.
The Agency determined that Complainant established that he was a person with a disability in that he was substantially limited in the major life activity of work. However, with regard to Complainant's failure to accommodate allegation involving claim 2, the Agency determined that Complainant failed to demonstrate that he was denied a reasonable accommodation. The Agency noted that MCS testified that Complainant never stop using the cart, and therefore was accommodating himself. The Agency further noted that Complainant's request to reduce the use of stairs in his route was granted by MCS.
With regard to Complainant's disparate treatment claims, the Agency determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim 1, the Agency found that the MCS testified that the annual city route inspections were due for all routes in the unit. Complainant's route was randomly chosen for inspection on June 13, 2011, and MCS walked Complainant's route with him. MCS testified that he conducted a Pre-Disciplinary Interview (PDI) with Complainant on June 13, 2011, to address issues that needed to be changed on his route, but Complainant was not issued discipline. MCS informed Complainant that his line of travel would be changed during a PDI/route consultation. MCS asked Complainant if he believed the route was efficient. Complainant stated that he did, however, MCS disagreed. Complainant's route had 13 to 14 park points for a route with less than 300 deliveries in close proximity. MCS reduced the park points to 8 and eliminated redundant travel time. The implementation date of the actual physical changes occurred on June 25, 2011; however, Complainant's LOT was changed after he conducted the 3999 route inspection on Complainant's route.
With regard to claim 2, MCS provided affidavit testimony that Complainant misunderstood his directions about using the cart on June 13, 2011. MCS stated that he told Complainant that when he returned from his route, he should initially carry something from his truck into the building based on the volume. MCS noted that Complainant typically walked into the building empty handed, grabbed a cart from his case, wheeled the cart out, and unloaded his gear from his vehicle. MCS stated this was an inefficient routine. In any event, MCS stated that Complainant continued the routine and continued to walk in empty handed and was allowed to use the cart.
The Agency found that Complainant failed to establish that the Agency's proffered reasons were a pretext for discrimination. Specifically, with regard to claim 1, Complainant stated that he believed he was discriminated against because MCS changed his route despite his physical impairments. With regard to claim 2, Complainant argued that MCS allowed other disabled employees to use a cart and he knew if Complainant used a cart, he could relieve the Complainant's pain. Complainant testified his EEO activity was a factor because MCS felt the need to "get back" at him and make his life miserable. The Agency determined that Complainant failed produce any evidence showing that management's actions were because of his disability or prior EEO activity. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the facts of the case and explains why he believed he was discriminated against as alleged. Complainant also provided additional testimony from two co-workers regarding how he stopped using the cart. Complainant also provided testimony from family members explaining the affect the Agency's actions had on him. In response, the Agency argues that Complainant failed to establish that he was discriminated or not accommodated as alleged and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Claim 1
With regard to claim 1, we note that generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming arguendo that Complainant established prima facie cases of disability and reprisal discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, MCS stated that Complainant's LOT and route were changed because he believed Complainant's route was not efficient at the time it was assessed.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. We find that Complainant failed to establish that the Agency's proffered reasons for its actions were a pretext for discrimination. Specifically, Complainant merely argues that he believed MCS's actions were discriminatory but offers no evidence to demonstrate that this is the case. Further, Complainant has failed to offer any evidence to corroborate his own assertions that the changing of his route and LOT was dangerous. Complainant also did not produce any evidence to show that the route change reduced his efficiency or otherwise showed that MCS's testimony does not warrant credence. Accordingly, we find that Complainant failed to establish that he was discriminated or retaliated against as alleged.
Claim 2
Under the Commission's regulations, an Agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
Assuming that Complainant established that he is a qualified individual with a disability, we find that he failed to show that the Agency did not provide him with an accommodation. We note that on appeal, Complainant offers the unsworn testimony of two coworkers who state that they did not see Complainant use a cart again until September 2011. However, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO Management Directive for 29 C.F.R. Part 1614 (MD-110), 9-15, (November 9, 1999); 29 C.F.R. � 1614.404(b). Since Complainant has not demonstrated that this evidence was not reasonably available, the Commission declines to consider the additional evidence that Complainant submitted on appeal. Further, we find that Complainant failed to offer any evidence to corroborate his assertions that MCS denied him the use of the cart. Complainant also failed to offer any evidence to rebut MCS's testimony that he did not deny the use of the cart to Complainant, but rather requested Complainant to be more efficient and bring in other equipment first before getting the cart and returning to his truck. Accordingly, we find that Complainant has failed to demonstrate that the Agency denied his request for an accommodation as alleged.
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 FAD finding that Complainant failed to demonstrate that he was discriminated against as 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
___11/9/12_______________
Date
1 The record shows that on June 30, 2011, Complainant's filed a grievance alleging the changes were unsafe. Additionally on July 23, 2011, Complainant filed a Report of Hazard and Unsafe Condition or Practice wherein he contended the changes to his LOT required him to cross a busy intersection up to five times and was unsafe. The Report noted MCS visited the intersection with NALC Safety Representative and corrective action was taken to eliminate the hazardous and unsafe condition or practice.
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0120122518
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122518