0320130024
10-30-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Petition No. 0320130024
MSPB Nos. CH-0752-12-0767-I-1, CH-3443-12-0633-I-1
DECISION
Petition filed a petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of the events at issue, Petitioner worked as a Mail Processing Clerk at the Saginaw Processing and Distribution Center in Michigan. In April 2012, the Agency advertised a reassignment opportunity for a Bulk Mail Tech position at the Greenville Post Office in Michigan. The posting stated that an employee could bid for the position from April 1-21, 2012, but would not be allowed to withdraw or modify their bid after that time. In addition, the posting stated that an employee who was awarded the bid had to successfully complete certain training requirements in order to qualify for the position, that failure to qualify would result in removal from the Agency, and that the employee would not have retreat rights to the previous position. According to the position description, the function of the position was the following: "Accepts, verifies, classifies and computes postage on all classes of domestic and international business mail. Provides customer service to ensure customer's understanding of postal regulations, mail preparation requirements and methods of presentation." Moreover, the position description stated that the requirements of the position included performing basic mathematical computations, providing proactive customer service, and passing Bulk Mail Test #425.
Petitioner successfully bid for the Bulk Mail Tech position. On April 24, 2012, after the posting had closed, Petitioner requested to withdraw his bid because it "would be a hardship." On May 1, 2012, Petitioner clarified that he was requesting to withdraw his bid based on his inability to perform the duties of the position.
On May 15, 2012, the Agency asked Petitioner for authorization to submit a list of specific questions to his physician so that it could determine his ability to perform the essential functions of the position. On May 20, 2012, Petitioner informed the Agency that he would prefer not to allow access to his medical records, but would be willing to provide the Agency with whatever information it needed.
On May 30, 2012, the Agency asked Petitioner for medical documentation from his physician by June 14, 2012. Specifically, the Agency requested documentation identifying Petitioner's medical condition, identifying Petitioner's medical restrictions, and assessing Petitioner's ability to perform the essential functions of the position. The Agency provided Petitioner with a copy of the position description.
On June 15, 2012, after receiving no documentation from Petitioner, the Agency informed Petitioner that he would be reassigned to the position effective June 30, 2012.
On June 26, 2012, Petitioner submitted a letter from his physician dated June 20, 2012. The letter stated:
I have been asked by [Petitioner] to write a letter concerning his bid to work as a bulk mail technician. [Petitioner] indicated to me in the appointment today that he bid on this position and then due to a family illness of his parents or in laws he was out of the area to reevaluate his bid. He is very concerned that his ability to possibly perform some of the math computations that might be included in the job would be something that he might have difficulties completing. He is also concerned about having to do a lot of customer service. He is currently very happy in his current position and he would like very much to have the opportunity to withdraw his bid for the bulk mail tech position. He feels that he can perform his current job well. Thank you for considering his request for retraction of his bid for the position of bulk mail tech.
On June 27, 2012, the Agency informed Petitioner that it was unable to withdraw his bid at this time because the June 20, 2012 letter did not address any restrictions or inabilities to perform the essential functions of the position. The Agency advised Petitioner to make arrangements for reporting to the new position.
Effective June 30, 2012, Petitioner was reassigned to the new Bulk Mail Tech position. On July 11, 2012, Petitioner took and failed Bulk Mail Test #425. On July 31, 2012, the Agency issued Petitioner a notice of proposed removal for failing Bulk Mail Test #425. On August 22, 2012, the Agency issued a decision to remove Petitioner, effective September 10, 2012.
MSPB
Petitioner filed mixed case appeals with the MSPB alleging that the Agency discriminated against him on the basis of disability (posttraumatic stress disorder (PTSD)). In MSPB
No. CH-0752-12-0767-I-1, Petitioner challenged his removal. In MSPB No. CH-3443-12-0633-I-1, Petitioner challenged his reassignment.
On March 15, 2013, based on the written record, an MSPB Administrative Judge (AJ) issued an initial decision on the joined appeals. Regarding MSPB No. CH-0752-12-0767-I-1 (removal), the MSPB AJ found no disability discrimination. Specifically, the MSPB AJ determined that Petitioner was not an individual with a disability within the meaning of the Rehabilitation Act and therefore failed to establish that the Agency denied him a reasonable accommodation or subjected him to disparate treatment. In addition, the MSPB AJ found that, despite being directed to do so by the Agency, Petitioner submitted no medical documentation to support his assertion that the position's duties were incompatible with his medical condition. Although Petitioner submitted the June 20, 2012 letter from his physician, the MSPB AJ found that the letter merely restated Petitioner's subjective concerns and desire to return to his previous position, but provided no medical evidence or opinion to support his request for a medical disqualification from the position. Moreover, the MSPB AJ determined that there was no foundation for Petitioner's assertion that the Agency would not allow him to submit additional medical evidence concerning his ability to perform the position or that he would have provided the necessary evidence had the Agency waited to make its June 2012 decision. Regarding MSPB No. CH-3443-12-0633-I-1 (reassignment), the MSPB AJ dismissed the appeal for lack of jurisdiction. Thereafter, Petitioner sought review by the full Board.
On December 30, 2013, the Board issued separate final orders on Petitioner's appeals. Regarding MSPB No. CH-0752-12-0767-I-1, the Board affirmed the MSPB AJ's finding of no disability discrimination.1 Regarding MSPB No. CH-3443-12-0633-I-1, the Board affirmed the MSPB AJ's dismissal for lack of jurisdiction.
ARGUMENTS IN PETITION
In his petition, Petitioner argued that the MSPB erred in finding that he was not an individual with a disability within the meaning of the Rehabilitation Act. Specifically, Petitioner asserted that he sought mental health treatment around the time of his removal, but was unable to provide medical documentation for his PTSD because he was not diagnosed until 2013. In addition, Petitioner asserted that the Agency was aware that he had other disabilities (neurological disorder, arthritic knees, severe allergies, hearing loss, skin disorder, hip osteoporosis) because it had hired him as a preference eligible veteran. Moreover, Petitioner asserted that that the Agency had all the medical documentation he submitted during his 20 years of service.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
MSPB No. CH-0752-12-0767-I-1 (Removal)
For purposes of analysis only, we assume, without so finding, that Petitioner is an individual with a disability within the meaning of the Rehabilitation Act.
I. Reasonable Accommodation
A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his disability and functional limitations. Id. at Question 6. The employer is entitled to know that the individual has a covered disability for which he needs a reasonable accommodation. Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. If an individual's disability or need for accommodation is not obvious, and he refuses to provide the reasonable documentation requested by the employer, then he is not entitled to reasonable accommodation. Id.
Upon review, we find that Petitioner did not provide sufficient medical documentation to support his request for reasonable accommodation. After receiving Petitioner's request to withdraw his bid, the Agency asked for medical documentation identifying his medical condition, identifying his medical restrictions, and assessing his ability to perform the essential functions of the position. Petitioner, however, did not provide the documentation requested by the Agency at any point prior to the Agency's August 22, 2012 removal decision. Although Petitioner submitted a June 20, 2012 letter from his physician, it contained none of the information requested by the Agency and merely consisted of his physician's summary of the concerns Petitioner had about the position. Accordingly, we find that Petitioner failed to demonstrate that the Agency denied him a reasonable accommodation.
II. Disparate Treatment
To prevail in a disparate treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also, Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). Petitioner 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 Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner 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 Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that Petitioner failed to establish his disparate treatment claim. Assuming, arguendo, that Petitioner established a prima facie case of disability discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing him; namely, Petitioner failed Bulk Mail Test #425. Moreover, we find that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's reason was pretextual. The undisputed record reflects that a requirement for the position included passing Bulk Mail Test #425 and that Petitioner failed Bulk Mail Test #425. Accordingly, we find that Petitioner failed to demonstrate that the Agency subjected him to disparate treatment as alleged.
MSPB No. CH-3443-12-0633-I-1 (Reassignment)
Upon review, we find that we have no jurisdiction to review Petitioner's petition. Here, the MSPB dismissed Petitioner's appeal for lack of jurisdiction and did not make any determinations on allegations of discrimination. When the MSPB denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the case will be considered a "non-mixed" matter and processed accordingly. See 29 C.F.R. � 1614.302(b); Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990). In accordance with these principles, this matter is referred to the Agency for further processing as outlined below in the Notice To The Parties.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no disability discrimination in MSPB No.
CH-0752-12-0767-I-1 and to DENY CONSIDERATION of MSPB No. CH-3443-12-0633-I-1.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b) that the Agency is required to process his allegation of disability discrimination in MSPB No. CH-3443-12-0633-I-1 as a "non-mixed" matter pursuant to 29 C.F.R. � 1614.105 et seq. The Agency shall promptly notify Petitioner in writing of the right to contact an EEO Counselor within forty five (45) days of receipt of the notice and to file an EEO complaint, subject to 29 C.F.R. � 1614.107. The date on which Petitioner filed MSPB No. CH-3443-12-0633-I-1 shall be deemed to be the date of initial contact with an EEO Counselor.
A copy of the Agency's notification to Petitioner should be provided to the Compliance Officer as indicated below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
__10/30/14________________
Date
1 The Board, however, reversed Petitioner's removal because it found that the Agency considered ex parte information outside of the scope of the notice of proposed removal in issuing its removal decision. The Board ordered the Agency to reinstate Petitioner unless and until he was afforded a constitutionally correct removal procedure. After the Agency again removed him on March 21, 2014, Petitioner filed a mixed case appeal with the MSPB (MSPB No. CH-0752-14-0387-I-1) and an MSPB AJ issued a September 24, 2014 decision finding no discrimination. We note that Petitioner has not filed a petition with the Commission asking for review of the MSPB's September 24, 2014 decision.
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0320130024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320130024