01a45638
02-15-2005
Angela Dean Cater, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Angela Dean Cater v. United States Postal Service
01A45638
February 15, 2005
.
Angela Dean Cater,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01A45638
Agency No. 4G-700-0158-02
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk at the agency's Alexandria, Louisiana facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 17, 2002, alleging that she was discriminated
against on the basis of disability (impairment: pneumothoraces) when:
1 On August 1, 2002, the agency denied complainant accommodation for
her medical restrictions;
On March 14, 2002, the agency gave complainant a job offer which violated
her medical restrictions; and
On April 1, 2002, the agency denied complainant's request for a schedule
change.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a final agency decision. In its FAD, the agency concluded
that complainant was not subjected to disparate treatment based upon
her disability nor denied a reasonable accommodation.
In a letter dated August 23, 2000, complainant's physician informed the
agency that complainant had �the propensity to develop pneumonthorax,
which is an air leak around the lung, and we need to be very careful
in terms of her handling anything that weighs above five pounds.� The
physician stated that complainant can work her regular scheduled hours
from 6:00 p.m. to 2:30 a.m.
In an OWCP form dated March 12, 2002, complainant's physician restricted
complainant from lifting more than five pounds and recommended she
work day duty and avoid exposure to dust, fumes, chemicals, and smoke.
The record contains a Limited Duty Assignment offer from the agency dated
March 14, 2002. The offered manual clerk assignment reflected a five
pound lifting restriction and a work schedule from 8:00 p.m. until 4:50
a.m. The work tasks included casing letters, answering the telephone,
and working certified mail. Complainant rejected this offer on March 14,
2002 and stopped working until August 2002<1> because she contended that
it violated her physician's orders not to work at night. Complainant
sought compensation with the Office of Workers' Compensation Programs
(OWCP) because she was not given a light duty assignment on the day shift.
On March 29, 2002, complainant requested a temporary schedule change to
work from 8:00 a.m. until 4:50 p.m., which was denied by the agency on
April 1, 2002.
In a letter dated March 27, 2002, complainant's physician stated that
complainant had a history of multiple spontaneous pneumothoraces.
�Her work at night previously has involved working around machines
which generate significant portions of dusk and some degree of perhaps
some fumes and it is my recommendation that she work day time hours
to avoid exposure to these exacerbating factors,� the letter stated.
The physician recommended that complainant work from 8:00 a.m. until 6:00
p.m. In another letter dated September 16, 2002, the physician informed
the agency that complainant's symptoms are �greatly exacerbated� by dust.
She maintained that working at night also exacerbated her symptoms.
She recommended that complainant work the day shift and minimize exposure
to dust.
In response to the physician's letters, the agency conducted an air
sample analysis conducted by an independent company to determine the
levels of dust and fumes in the Alexandria Post Office. The analysis
was conducted on April 15, 2002 between the hours of 8:00 p.m. and 10:00
p.m. with machinery in operation. The analysis found that the levels
of dust in the Post Office were below the acceptable limits required by
Occupational Safety & Health Administration (OSHA).
On August 12, 2002, complainant accepted a modified job position with
the hours of 8:00 p.m. until 4:50 a.m. In a memorandum to the office
dated August 16, 2002, complainant indicated that after she returned to
work on August 12, 2002, she developed pneumonia.
On September 30, 2002, the OWCP issued a decision on complainant's claim
for compensation for the period March 14 - September 30, 2002. The OWCP
concluded that because the dust analysis found that the levels of dust in
the Alexandria Post Office were not hazardous to complainant, the evidence
does not support her claim that she is unable to work the night shift.
The OWCP decision noted that complainant's physician was notified of the
results of the analysis and asked to comment on complainant's suitability
to work at night, but the physician failed to respond.
In a letter dated October 31, 2002, the agency directed complainant to
report for duty on Tour 3 and again denied her request to work Tour 2.<2>
The agency cited the dust analysis and the OWCP's findings as the reason
for denying complainant's request.
The agency maintains that it denied complainant's request to work
during the day because letter mail is not available for manual sorting
until after 6:00 p.m. and complainant's services were needed during the
night shift. The agency contends that because they have a shortage of
clerks who work primary mail, moving complainant to the day shift would
result in the need to use more overtime and the reassignment of other
employees from other tasks.
As a preliminary matter, we note that we review the decision
on an appeal from a final agency decision de novo. 29 C.F.R. �
1614.405(a). Accordingly, we have carefully reviewed the entire record
before us in our attempt to discern whether a preponderance of the
evidence warrants a modification of the agency's ruling. See 29 C.F.R. �
1614.405(a).
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
For purposes of analysis, we assume arguendo that complainant is a
qualified individual with a disability entitled to coverage under the
Rehabilitation Act. Upon review of complainant's complaint, we find
that complainant failed to establish a prima facie case of disability
discrimination for any of her disparate treatment claims. In so
finding, we note that complainant failed to show that any individual
not in her protected class was treated differently than she under
similar circumstances, nor any other evidence from which an inference
of disability discrimination could be drawn. For claim 1, complainant
alleged that three other employees with medical restrictions were granted
work within their medical restrictions. However, the record reveals that
they were not similarly situated to complainant because the comparatives
were in permanent rehabilitation assignments pursuant to OWCP, while
complainant was on limited duty as a result of a temporary aggravation
of a preexisting condition. For claim 2, complainant failed to name
any comparative employees not within her protected classes who were
treated differently under similar circumstances, nor any other evidence
from which an inference of disability discrimination could be drawn.
Regarding claim 3, complainant named two employees who were granted a
daytime schedule because of child care needs, whereas complainant sought
a schedule change for her personal health. There is no evidence that
these individuals had the restrictions complainant had or were otherwise
similarly situated to her.
The Commission further finds that the agency proffered legitimate,
non-discriminatory reasons for each of the claimed actions and that
complainant did not persuasively rebut them. Consequently, we find that
the agency properly found no discrimination.
Reasonable Accommodation
The agency also has a duty to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation
of its business. 29 C.F.R. � 1630.9(a); see Spaulding v. U.S. Postal
Service, EEOC Appeal Nos. 01982863 & 01991949-53(September 14, 2001)
(holding that agencies must make reasonable accommodation for qualified
employees to work overtime). An agency is not required to create a job
as a form of reasonable accommodation. Castenda v. United States Postal
Service, EEOC Appeal No. 01951445 (September 18, 1998).
Although the agency parsed complainant's complaint into three distinct
claims, we find that all of the matters in complainant's complaint
are essentially part of a single claim that beginning in March 2002,
the agency failed to accommodate her medical condition by granting her a
daytime work schedule. In this case, complainant's medical documentation
regarding her need to work a day schedule is exceptionally scant.
An employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22, 1997). The most detailed explanation
from her physician was that complainant's �work at night previously has
involved working around machines which generate significant portions of
dust and some degree of perhaps some fumes and it is my recommendation
that she work day time hours to avoid exposure to these exacerbating
factors.� However, there is no evidence in the record that working at
night exposed complainant to more dust, fumes, or smoke than working the
day shift. Unclear about the reason why complainant's condition made
it necessary for her to work the day shift, the OWCP sought input from
complainant's physician about the results of the dust analysis, but the
physician failed to respond to the request for further information. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, Notice No. 915.002, at Question
5 (October 17, 2002) (noting that where the need for an accommodation is
not obvious, the employer may need to ask questions concerning the nature
of the disability and the individual's functional limitations in order to
identify an effective accommodation"). We find that complainant failed
to sufficiently demonstrate a nexus between her medical condition and the
need to work only during the day. Consequently, we find that the agency
did not fail to provide complainant with a reasonable accommodation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________ _February 15, 2005______
Carlton M. Hadden, Director Date
Office of Federal Operations
1The record reveals that complainant took Leave Without Pay during
this period.
2Duty hours that fall between 6 a.m. and 6 p.m. are known as Tour 2.
Early morning hours are called Tour 1 and late evening hours are called
Tour 3