0120113856
02-07-2012
Tracy L. Ferguson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Tracy L. Ferguson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113856
Hearing No. 540-2011-00122X
Agency No. 4E-852-0072-10
DECISION
On August 16, 2011, Complainant filed an appeal from the Agency’s July
13, 2011, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems
the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales Service Distribution Associate at the Agency’s Main Post
Office facility in Tempe, Arizona.
The record indicated that on November 18, 2009, Complainant was injured
on-the-job. On November 19, 2009, Complainant informed his supervisor
(Supervisor) of his back injury. Complainant indicated that the
Supervisor yelled at him and told him to wait at the Supervisor’s desk
while he explained the situation to the Postmaster and the Manager.
Later, Complainant asserted that he could not perform all the duties
of his position because of the back injury so needed a reasonable
accommodation in the form of a limited duty position within his medical
restrictions. Complainant was referred to the District Reasonable
Accommodation Committee (DRAC) on April 15, 2010, five months after his
injury. Complainant did not attend the DRAC meeting because he had a
conflict with a court appearance in Family Court. Complainant believed
he was being treated differently than others for he was not provided
with work like other similarly situated employees had been given.
Complainant asserted that he was provided with only five hours of
work per week and not 40. The record also showed that by April 2010,
Complainant no longer had any limitations.
Believing that he had been subjected to discrimination, Complainant
contacted the EEO Counselor on July 5, 2010. When the matter could not
be resolved informally, on August 24, 2010, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the
bases of disability (lower back injury), age (44), and reprisal for
prior protected EEO when, beginning in November 2009, because of his
on-the-job injury, Complainant was told that he could not meet the
physical requirements of a carrier position. Complainant believed
that Management failed to provide him with an appropriate reasonable
accommodation. Complainant indicated that the Supervisor told him
that the Agency was creating a part-time 36-hour position. However,
Complainant was later informed that they could only provide him with
five hours of work.
The Agency, in its Partial Acceptance/Partial Dismissal letter, found
that the Complainant alleged the following claims of discrimination:
1) on the basis of reprisal when, on December 24, 2009, Complainant was
issued a Letter of Warning for Unacceptable Conduct;
2) on the basis of age and disability when, on January 4, 2010,
Complainant was offered a position working five hours a day;
3) on the basis of age and disability when, on November 11, 2009,
Complainant was offered a 36-hour position but was later told it was
not available; and
4) on the basis of age and disability when, on November 9, 2009,
Complainant was yelled at for reporting his on-the-job injury.
The Agency accepted claim (1) for investigation. The Agency dismissed
claims (2), (3) and (4) pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. The Agency noted that Complainant failed to
show that he was aggrieved in the alleged claims.
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. The AJ reviewed the Agency’s Partial
Acceptance/Partial Dismissal letter. The AJ determined that Complainant
had not, in fact, raised a claim regarding a letter of warning in his
formal complaint, and redefined Complainant’s claim as an allegation
of discrimination on the bases of age, disability and reprisal when,
from April 15, 2010 to July 5, 2010, the Agency failed to provide him
with a reasonable accommodation based on his medical restrictions from
his on-the-job injury in November 2009.
Complainant later withdrew his request for a hearing, and the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. The Agency found that
Complainant failed to show that there was an accommodation to which he
could have been assigned while he was under restrictions from November
2009 through April 2010. The Agency then noted that after April 2010,
Complainant was released from his physical restrictions. Therefore,
the Agency found that Complainant did not need an accommodation
after April 2010. As such, the Agency found that Complainant failed
to show that the Agency’s action violated the Rehabilitation Act.
Further, the Agency determined that the Management provided legitimate
non-discriminatory reasons for its actions. Accordingly, the Agency
concluded that Complainant failed to show that the Agency’s actions
constituted discrimination based on his age and/or prior EEO activity.
This appeal followed without specific comment. The Agency requested
that we affirm its final decision finding no discrimination.
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”).
As an initial matter, we note that the Agency improperly defined the
complaint. Upon review, we find that the matter before the Commission
is whether the Agency discriminated against Complainant on the bases of
age, disability or reprisal, when, from November 2009, the Agency failed
to provide him with a reasonable accommodation regarding his on-the-job
injury. All the events listed by the Agency as separate claims in its
Partial Acceptance/Partial Dismissal letter should have been treated
as a single claim of discrimination. The “claims” listed by the
Agency were provided by Complainant in support of his claim that the
Agency denied him a reasonable accommodation.
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the Agency
can show that accommodation would cause an undue hardship. 29 C.F.R. §�
�1630.9. For the purposes of analysis, we assume Complainant is an
individual with a disability. 29 C.F.R. § 1630.2(g)(1).
Complainant also must show that he is a “qualified” individual with
a disability within the meaning of 29 C.F.R. § 1630.2(m). We note
that the discussion of “qualified” does not end at complainant’s
position. The term “qualified individual with a disability,” with
respect to employment, is defined as a disabled person who, with or
without a reasonable accommodation, can perform the essential functions
of the position held or desired. 29 C.F.R. § 1630.2(m). The term
“position” is not limited to the position held by the employee,
but also includes positions that the employee could have held as a
result of reassignment. Therefore, in determining whether an employee
is “qualified,” an agency must look beyond the position which the
employee presently encumbers. Accordingly, the agency should consider
reassignment. EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans With Disabilities Act (Enforcement
Guidance - Reasonable Accommodation), No. 915.002 (revised October 17,
2002); see also Interpretive Guidance on Title I of the Americans With
Disabilities Act, Appendix. to 29 C.F.R. Part 1630.2(o).
Upon review of the record, Complainant indicated that he could return to
his position when he was cleared without restrictions on April 15, 2010.
Therefore, prior to April 15, 2010, we find Complainant suggested that
the only effective reasonable accommodation would be a reassignment.
Complainant pointed to a variety of duties to which he could have been
assigned. The Commission notes that an employer is neither required to
create a job for a disabled employee, nor is it required to transform
its temporary light or limited duty assignments into permanent jobs
to accommodate an employee's disability. See Mengine v. Runyon, 114
F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. U.S. Postal Serv.,
EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance:
Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21 (Sept. 3,
1996). Accordingly, the Commission finds that Complainant has not
demonstrated that he was denied reasonable accommodation when he was
not assigned duties to perform
Complainant then pointed to positions held by other employees which he
believed he could have performed. Complainant has an evidentiary burden
in such reassignment cases to establish that it is more likely than not
(preponderance of the evidence) that there were vacancies during the
relevant time period into which complainant could have been reassigned.
Complainant can establish this by producing evidence of particular
vacancies. However, this is not the only way of meeting complainant’s
evidentiary burden. In the alternative, Complainant need only show
that: (1) he was qualified to perform a job or jobs which existed at
the agency, and (2) there were trends or patterns of turnover in the
relevant jobs so as to make a vacancy likely during the time period.
Here, Complainant pointed to positions which were held by other employees.
Complainant was not able to provide vacant funded positions to which he
could have been reassigned. As such, we find that Complainant has not
shown that the Agency violated the Rehabilitation Act.
Disparate Treatment
We note that Complainant also alleged that he was not assigned a position
due to his age and prior protected EEO activity. A claim of disparate
treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For Complainant to prevail, he or she 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
Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the Agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
Complainant has shown by a preponderance of the evidence that the
Agency’s actions were motivated by discrimination. U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC
Petition No. 03900056 (May 31, 1990). Upon review, we find that the
Agency provided legitimate, nondiscriminatory reasons for its action.
The Supervisor noted that Complainant did not qualify for the Carrier
position based on his limitations and declined the other positions which
were offered to Complainant within his limitations. Complainant argued
that others were treated better. However, we find that Complainant had
not shown that the Agency’s reasons were pretext for discrimination
based on his age and/or prior EEO activity.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, 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
February 7, 2012
__________________
Date
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0120113856
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113856