0120110508
02-09-2012
Edgar M. Porter, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Edgar M. Porter,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120110508
Hearing No. 530-2008-00118X
Agency No. 1C-081-0023-07
DECISION
On October 26, 2010, Complainant filed an appeal from the Agency's September 28, 2010, notice of final action concerning his equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's notice of final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Causal EAS-07, at the Agency's Wilmington Processing and Distribution Facility in Wilmington, Delaware. Complainant worked on Tour 1 from February 12 to May 25, 2007, and his normal duty hours were from 11:00 p.m. to 8:00 a.m. Complainant worked as a Casual Mail Equipment Operator in automation and his position required him to lift and carry trays of mail weighing between 14 to 35 pounds and required him to perform duties that involved prolonged standing (virtually the entire time) and walking. Hearing Transcript, 68 - 69; 129 - 131. Person A, Supervisor of Distribution Operations on Tour 1, was Complainant's first-level supervisor. Person B, Manager of Distribution Operations on Tour 1, was Complainant's second-level supervisor.
Complainant was on Sick Leave Without Pay (SWOP) from the beginning of his shift on May 18, through May 21, 2007. His Scheduled Days Off (SDO) were May 22 - 23, 2007. Complainant was marked Absent Without Leave (AWOL) on May 24, 2007. Complainant came into work around 11:00 p.m. on May 24, 2007, and gave Person A a doctor's note dated May 23, 2007, stating that he needed "an orthopedic evaluation." ROI at 70. Complainant informed Person A and Person B that he needed to be seen by an orthopedic specialist and that he would need future time off for that appointment. At the time, Complainant had not yet scheduled an appointment with an orthopedic specialist. Complainant also told Person A and Person B that he could not work at the time and that he did not know when he would be able to return to work. Complainant went home two hours after arriving and did not work that night.
The Agency commenced proceedings to terminate Complainant on May 25, 2007, for unsatisfactory attendance. ROI, Exhibit 3. The effective date of Complainant's termination was May 25, 2007, although the Agency did not mail the Letter of Separation until June 7, 2007. ROI, Exhibit 2. Complainant was told he was terminated on May 25, 2007; however, he believed that if he brought in medical documentation, he might be reinstated.
On May 31, 2007, Complainant sent a facsimile to the Agency stating that he would be out until he is seen by his orthopedic specialist on June 6, 2007. Complainant also sent a copy of an MRI for his lumbar spine taken on January 10, 2007. The impression of the MRI noted that there were "tiny right recess disc herniation and annular tear at L5-S1" and "L3-4 through L5-S1 facet arthropathy which at the L4-5 level minimally encroaches on the inferior aspects of the subarticular recess bilaterally." ROI, Exhibit 5.
On June 6, 2007, Complainant was seen by Doctor X of the Wilmington Hospital Health Center. In his report, Doctor X stated that Complainant may never return to usual duties at work. Doctor X stated that Complainant was unable to do prolonged standing, walking or lifting. ROI, Exhibit 5.
On August 16, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and disability (back and leg) when:
1. Effective May 26, 2007, Complainant was terminated from employment.
2. Complainant was denied a reasonable accommodation.
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 the AJ held a hearing by videoconference on June 2, 2009, and June 10, 2009.
The AJ issued a decision on September 20, 2010. In his decision, the AJ determined that Complainant failed to proffer which females were more favorably treated under the same or similar circumstances. The AJ noted that the record indicates that more female Casuals were terminated than male Casuals. Thus, the AJ found Complainant failed to establish a prima facie case of disparate treatment based on sex.
With regard to his claim of disability discrimination, the AJ found Complainant is not a qualified individual with a disability since he could not perform the essential functions of his job with or without reasonable accommodation. Specifically, the AJ noted that based on the medical report of June 6, 2007, signed by Doctor X, Complainant would be unable to perform most, if not all, of the essential functions of his Casual position.
Assuming Complainant established a prima facie case of discrimination based on sex and disability, the AJ found the Agency set forth legitimate, non-discriminatory reasons for his termination, that Complainant was on SWOP from May 18, to 21, 2007 and from May 25 to 30, 2007, and on AWOL on May 24, 2007. The AJ found Complainant failed to furnish appropriate medical documentation to cover his past absences let alone future ones.
With regard his failure to accommodate claim, the AJ found Complainant did not establish he has a disability or that the decision makers knew of the nature and extent of his impairment. Thus, the AJ found there was no basis upon which to accommodate Complainant in this case.
The Agency subsequently issued a notice of final action on September 28, 2010. The Agency's notice of final action fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
As an initial matter, we note that the AJ chose to conduct this hearing by videoconference. In Allen v. U.S. Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse his discretion by electing to hold a video-conference hearing.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Upon review, substantial evidence supports the AJ's finding that assuming Complainant is an individual with a disability, he is not a qualified individual since he could not perform the essential functions of his position. Specifically, the record reveals that the essential function of Complainant's Casual position requires him to lift and carry trays of mail and involves duties which require prolonged standing, lifting and walking. According to the June 6, 2007 note provided by Doctor X, Complainant was prohibited to returning to his usual duties at work. Moreover, Doctor X stated that Complainant was unable to do prolonged standing, walking and lifting. Accordingly, we concur with the AJ's finding that Complainant has not shown that the Agency violated its duties under the Rehabilitation Act.
With regard to Complainant's claim that he was subjected to discrimination based on his sex, we find the Agency articulated legitimate, non-discriminatory reasons for terminating complainant. Specifically, the Agency stated that Complainant was terminated for being on SWOP from May 18, to May 21, 2007, and for being AWOL on May 24, 2007. The Agency noted that Complainant failed to furnish appropriate medical documentation to cover his past absences. Upon review, we find Complainant has failed to show that the Agency's articulated reasons were a pretext for prohibited discrimination.
CONCLUSION
Accordingly, the Agency's notice of final action finding no discrimination is AFFIRMED.
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
2/9/12
__________________
Date
2
01-2011-0508
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110508