0120101160
06-08-2012
Stephen G. Hussey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Stephen G. Hussey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120101160
Hearing No. 510-2009-00217x
Agency No. 1H-322-0030-08
DECISION
Complainant filed an appeal from the Agency's December 8, 2009 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. For the following reasons, the Commission AFFIRMS the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail Dock Clerk at the Agency's Jacksonville Bulk Mail Center facility in Jacksonville, Florida. On July 9, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical and mental) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On March 7, 2008, Complainant was denied a promotion;
2. On April 1, 2008, Complainant was denied overtime, training, and tools to perform his job;
3. On October 2, 9, and 10, 2008, Complainant was charged Absent Without Official Leave (AWOL); and
4. On October 27, 2008, Complainant was issued a Letter of Warning.
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 requested a hearing but subsequently withdrew his request. By order dated October 29, 2009, the AJ entered Complainant's voluntary dismissal of his complaint from the hearing process and remanded the complaint to the Agency for a decision. Consequently, the Agency issued a Final Decision pursuant to 29 C.F.R. � 1614.110(b).
In its Decision, the Agency found that Complainant failed to establish a prima facie case of discrimination based on disability or in reprisal for prior protected activity with respect to any claim described in his complaint.
Specifically, the Agency observed that Complainant suffers from permanent conditions that include migraine headaches and herniated discs in his back which conditions Complainant had when he was hired by the Agency. The Agency noted that Complainant was cleared to return to full duty as of February 8, 2006, by his physician. Additionally, the Agency noted that Complainant explained his conditions affect him only when he has an attack or flare-up, which are treated with rest and medication. According to Complainant, his conditions have no impact on his daily activities when he is not experiencing an attack. The Agency concluded that Complainant is not substantially limited in any major life activity, he does not have a record of such an impairment, and he is not regarded as disabled by any of the Agency officials identified in the complaint. The Agency found that Complainant failed to establish that he is an individual with a disability and the Agency determined that his disability claims fail.
The Agency found that Complainant's most recent prior protected activity occurred in 2004, which is too remote from the incidents described in claims (1) and (2) to form the basis of reprisal for those claims. Further, the Agency found that the Agency officials identified in Complainant's complaint as responsible for the actions (charging Complainant with AWOL and issuing discipline to Complainant) described in claims (3) and (4) were unaware of Complainant's prior protected activity. Accordingly, the Agency found that Complainant failed to establish a prima facie case of reprisal discrimination with respect to any claim identified in his complaint.
Regarding claim (1) (non-selection), the Agency found that Job Posting CK6299 (Dock Clerk position #95161663), for which Complainant had applied, was cancelled on March 7, 2008, for Administrative Review. However, Complainant bid for that position when it was re-posted in the next job cycle and Complainant was awarded the position of Bulk Mail Dock Clerk on April 4, 2008. Complainant alleged that the job posting had been cancelled because S1 was aware that Complainant was the senior bidder and S1 did not want Complainant in the position because Complainant had applied for leave under the Family Medical Leave Act (FMLA) on those occasions when he had an attack or flare-up of his medical condition. Complainant alleged that he should have been awarded the higher graded position on March 15, 2008, and that he lost wages in the time between when he should have been awarded the position and when it was awarded to him after it was re-posted. The Agency found that Complainant was not denied a promotion but that at most, his promotion was briefly delayed by 20 days. The Agency explained that S3, the Manager of In-Plant Support (MIPS), directed that the posting be reviewed to ensure that it accurately reflected the duties of the position and the job's physical requirements. The Agency found that when the job was reposted, several changes were made. S3 denied that Complainant's medical conditions were the reason for the changes. Accordingly, the Agency found that Complainant failed to show that he was subjected to any adverse action and discriminated against as alleged in claim (1).
With respect to claim (2), the Agency found that Complainant was denied adequate training and tools to perform the Bulk Mail Dock Clerk position when he was awarded the position. Complainant stated that he was provided with only two days and four hours of training when he should have received three weeks of training. The Agency found no evidence regarding any Agency policy for mandatory training in the Dock Clerk position and thus nothing to show that Complainant was denied training that he should have received.
Complainant also alleged that he was not provided with a password to the Agency's computer system, V-TAPS, which hindered his ability to do his job and was also cited as a reason to deny Complainant the opportunity to work overtime. The Agency found that Complainant's access to the V-TAPS system was not denied, but was, however, briefly delayed. The Agency found nothing to show that Complainant's access was purposefully delayed by management as Complainant claimed. Accordingly, the Agency did not find that Complainant was denied either training or tools to do his job.
Complainant's supervisor, S2, did confirm that because Complainant did not have V-TAPS access, he was passed over for overtime on a single date, April 28, 2008. S5, the Plant Manager explained that the approval process for V-TAPS access had been changed and that change inadvertently led to Complainant's approval being delayed. S5, the Agency found, had never spoken to Complainant and did not know of any of Complainant's medical conditions, nor his prior EEO activity. Accordingly, the Agency found that Complainant failed to show that he was subjected to discrimination with respect to claim (2).
Regarding claim (3) (AWOL charges) and claim (4) (Letter of Warning), the Agency found that S6 explained that Complainant failed to report for work and failed to call in before the time he was scheduled to begin work on October 2 and October 9, 2008. Also, S6 stated that Complainant failed to report for work or call in on October 10, 2008. Complainant ultimately submitted leave requests on October 11, 2008 and on October 14, 2008, but these leave requests were not approved. S6 charged Complainant with failure to follow the established policy for requesting unscheduled leave. At the time she did so, S6 did not know that Complainant had an established FMLA claim. S6 was later so informed, but S6 explained that FMLA does not cover tardiness or excuse Complainant from his obligation to call to report his absence prior to the time he is scheduled to report for work. S6 subsequently issued the LOW to Complainant regarding his failure to maintain regular attendance. The Agency found that the LOW was concurred with by S4 and neither official was aware of Complainant's prior EEO activity. The Agency found that the AWOL charges and the LOW were issued for the reasons stated and that neither Complainant's medical condition nor his prior EEO activity motivated the Agency's actions.
Moreover, the Agency found that Complainant presented no evidence that the Agency's reasons for each of the actions described in Complainant's complaint were untrue and a pretext for discrimination. The Agency's Decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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").
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For petitioner 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to persuade the fact finder 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).
In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we assume, without so finding, that Complainant was an individual with a disability. We find that Complainant has not shown that more likely than not the Agency was motivated by Complainant's disability when his successful bid for the Bulk Mail Dock Clerk position was delayed by 20 days. We find that Complainant has not shown that the MIPS was aware of Complainant's medical condition at the time she directed that the job posting be cancelled for the purpose of conducting an administrative review. We find no evidence that S3 was aware of Complainant's prior EEO activity and accordingly, we find, as did the Agency that Complainant was not subjected to discrimination as alleged in claim (1).
Regarding claim (2), we find that the Agency provided Complainant with training and with access to V-TAPS within a reasonable time after he was placed in the Dock Clerk position. We find that Complainant has not shown that his disability or prior EEO activity played any role in the Agency's decisions to provide him with approximately two days of training or in the delay of his access to V-TAPS. We find Complainant has not shown that the Agency's explanations for its actions were false or unworthy of belief. We find that a number of officials (S3, S4, and S5) played a role in the administrative delay of Complainant's computer access, including officials that did not know Complainant personally.
With respect to claims (3) and (4), we note that individuals protected by the Rehabilitation Act, are not excused from uniformly applied standards of conduct and performance. We find no evidence in the record that the Agency applied its reporting and unscheduled leave policy differently to employees without disabilities; nor will Complainant's prior EEO activity shield him from application of the leave policy. We do not find any evidence that Complainant's medical condition so incapacitated him that he was unable to notify the Agency (that is, to call as required) when he would be late for work or unable to report as scheduled. We find that Complainant has not shown that the Agency's reasons for charging Complainant with AWOL and issuing discipline to him were a pretext for discrimination.
CONCLUSION
We AFFIRM the Agency's Final Decision, finding no discrimination.
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
June 8, 2012
__________________
Date
2
0120101160
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101160