0120111541
06-12-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120111541
Hearing No. 430-2010-00001X
Agency No. 1C251002209
DECISION
Complainant filed an appeal from the Agency's final decision concerning her 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., 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant was discriminated against on the bases of disability, sex (female), and age (58) and in reprisal for prior EEO activity when, (1) on or about October 20, 2008, she was denied a reasonable accommodation when she was advised that she was not selected for a bid position; and (2) on or about March 6, 2009 she was subjected to harassment and denied a reasonable accommodation when she was advised that she needed to provide additional documentation of her need to sit in a chair while working, and that her use of the chair would be prohibited until the documentation was provided.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-time Mail Processing Clerk, PS-06 at the Agency's Roanoke Processing and Distribution Center facility in Roanoke, Virginia. On February 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of "Issues Presented" above. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but, subsequently, the AJ dismissed the hearing request on the grounds that Complainant failed to comply with several pre-hearing orders. The AJ remanded the complaint to the Agency, 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 her to discrimination as alleged.
Specifically, the Agency found that Complainant was unable to satisfy the threshold requirement that she was a "person with a disability" as defined by the Rehabilitation Act because she was not substantially limited in any major life activity, she had no record of the disability, and she was not regarded as having a disability by the Agency. The Agency held that Complainant was not "otherwise qualified" for the bid job she sought because she was only able to work four hours, and the job was a full-time 8 hour position. The Agency further reasoned that the accommodation requested by Complainant of being allowed to only work four hours would pose an undue hardship. With respect to Complainant's request to use a chair while working, the Agency reasoned that it was appropriate to deny Complainant the requested accommodation because she failed to establish that she was a person with a disability, and was therefore not entitled.
Additionally, the Agency reasoned that Complainant failed to establish that she was treated any differently than similarly situated individuals not within her protected category with respect to the request to use a chair while working. With respect to Complainant's retaliation claim, the Agency held that while Complainant could establish a prima facie case of retaliation, she could not establish that individuals who refrained from engaging in prior EEO activity were treated more favorably than she was when she was forced into a Leave Without Pay (LWOP) status while acquiring the requested documentation to support her request to use a stool while working.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency Representative and the EEOC Administrative Judge made an "erroneous misinterpretation and implementation" of EEO rules, regulations and established laws. Complainant contends that she is an individual with a disability as defined by the Rehabilitation Act, and the Agency intentionally declined to accept her disability status in order to deny her requests for reasonable accommodation in the form of a reduced work day, and the use of a chair while working. Complainant contends that not only does her physical impairment meet the definition of what constitutes a disability under the statute, but she has had a continuous record of this disability since around 1981. Additionally, Complainant stated that she has been "regarded as" having a substantially limiting impairment since 2007 when her work schedule was reduce to a four hour work day and she was placed on Limited Duty status. Complainant submits that she was subject to disparate treatment as a result of her limited duty status as compared to the general workforce. Complainant alleges that her seniority was not considered with respect to her ability to be selected for her preferred bid position and tour of duty.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � IV.A. (Nov. 9, 1999). The instant appellate decision addresses only those matters raised on appeal by Complainant, and declines to address issues in the underlying complaint not explicitly raised on appeal.
Disparate Treatment - Disability
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). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) she is an "individual with a disability"; (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. 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). 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 her 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.
Bid Position
For purposes of this decision, we will assume arguendo, that Complainant is an individual with a disability who was subjected to an adverse employment action and that she established prima facie cases of disability and reprisal discrimination. Furthermore, we also find that management officials articulated legitimate, non-discriminatory reasons for denying Complainant the bid position she sought. The bid position in question was a full-time (eight hour) bid assignment. Complainant's medical restrictions, however, limited her to only working up to four hours per day. Consequently, we concur with the Agency's position in the FAD that Complainant failed to provide evidence to establish that the Agency's decision to deny her the bid job was motivate by discriminatory animus.
Failure to Accommodate - Bid Position & Use of Chair
Under the Commission's regulations, an agency is required to make reasonable accommodations 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. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Enforcement Guidance - Reasonable Accommodation. The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, she must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation absent undue hardship. See Enforcement Guidance.
We agree with the Agency's position that it was entitled to request reasonable documentation from Complainant regarding her request to use a chair as a reasonable accommodation. An agency may ask an employee for reasonable documentation about their disability and functional limitations when the disability, or need for accommodation, is not obvious. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) at 12-13. The Commission has recently held that, if an individual's disability or need for reasonable accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer, then the individual is not entitled to reasonable accommodation. Hunter v. Social Security Administration, EEOC Appeal No. 0720070053 (Feb. 16, 2012).
We again assume, for purposes of this decision only, that Complainant is a qualified individual with a disability. Complainant alleges that she was treated differently than similarly situated individuals without a disability with regard to being denied a reasonable accommodation of modifying an eight hour work assignment to four hours, and using a chair in order to sit while working. To the extent Complainant alleged that she was denied a reasonable accommodation when she was not selected for the 8 hour bid position and allowed to only work 4 hours a day, we find that what she was essentially asking for was that the Agency create a new part-time position for her. While the Agency had a duty to make a good faith effort to locate a vacant, funded position for which Complainant was qualified, it was under no obligation to create a new position for her.
The Commission acknowledges that the suggestions and preferences of an employee seeking reasonable accommodation are highly relevant and must be considered. See, e.g., Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 6. However, an agency is not required to provide the precise reasonable accommodation an employee wants, so long as the agency provides a reasonable accommodation that is effective. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 8. It is the agency providing the accommodation which "has the ultimate discretion to choose between effective accommodations ...." 29 C.F.R. � 1630.9 (app.).
With regard to Complainant's denial use of a chair while working, Agency management identified other employees who were also required to provide documentation for the use of a chair. Agency management indicated that as more Limited Duty Clerks were assigned to the duty station where Complainant worked, they had more clerks than chairs. As a solution, chairs were removed and employees were required to re-certify their need for use of a chair. We find that Complainant's argument that she was treated differently than every limited duty employee who had to re-certify because they were allowed to keep working while obtaining documentation and she was forced into a LWOP status is without merit. The record reflects that the Agency changed Complainant to a LWOP status because it had been notified by OWCP that her claim had been closed, and she was subsequently considered a light duty employee. Complainant was placed in LWOP status because there were no assignments which met her needs based on this status. The record is void of any evidence that this change in status had anything to do with Complainant's request to use the chair. Additionally, there is no indication in the record that the Agency did not accept Complainant's documentation regarding the use to the chair.
Hostile Work Environment
With respect to Complainant's contention that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that Complainant has not established that she was discriminated against as alleged. Accordingly, the Agency's final decision 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
_6/12/14_________________
Date
2
0120111541
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111541