0120072828
04-16-2010
Dale M. Simmons, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Dale M. Simmons,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120072828
Hearing No. 430-2006-00248X
Agency No. 4C-280-0056-06
DECISION
On May 31, 2007, complainant filed an appeal from the agency's May 11,
2007 notice of final action 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Carrier Technician at the agency's Independence Station in Charlotte,
North Carolina.
On April 17, 2006, complainant filed an EEO complaint alleging that she
was discriminated against and subjected to a hostile work environment
on the bases of race (African-American), color (black), sex (female),
disability (back and right shoulder), and in reprisal for prior protected
EEO activity when:
1. Since December 2004, complainant was intermittently denied work and
placed on Leave Without Pay (LWOP);
2. Beginning April 17, 2005, and continuing, complainant received
invoices/statements from the agency demanding monetary reimbursement as
a result of TACS Time and Attendance Collection System) adjustments;
3. From December 7, 2005, to March 7, 2006, complainant's request for
an accommodation to return to work was not approved;
4. On March 22, 2006, complainant was out of work again; and
5. On February 1, 2006, complainant was told that she could no longer
send in her 3971's via facsimile.
On May 5, 2006, the agency accepted issues (1) - (4) for processing.
The agency dismissed issue (5) pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. The agency stated that complainant failed
to show that she was aggrieved with regard to issue (5). Moreover, the
agency noted that on January 27, 2006, the employees of the Independence
Carrier Annex, Eastwood Finance Station and the Midwood Station were
advised that copies of 3971's sent by facsimile would no longer be
accepted by management.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on January 25 - 26, 2007.
The AJ issued a bench decision on complainant's complaint dismissing
issue (1) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The AJ found no discrimination with respect to the
remaining issues.
In his decision, the AJ noted that in April 2004, complainant requested
an ergonomic lumbar support chair pursuant to her medical restrictions.
The AJ noted that complainant underwent spinal fusion surgery in January
2005. The AJ found that at about this time, complainant requested and
received an ergonomic chair at work as a reasonable accommodation. The AJ
found that when the ergonomic chair was unavailable complainant was sent
home with pay as an accommodation until her chair was located. The AJ
noted complainant also requested an accommodation of a 30 minute commute.
The AJ found that whenever work within her medical restrictions, her
travel distance, or her chair was unavailable complainant did not work.
The AJ found Supervisor 1 sent complainant home on Continuation of Pay
(COP) when her ergonomic chair could not be located. Supervisor 2
changed the COP to LWOP to avoid the use of complainant's sick leave.
The AJ noted that complainant later was charged $229.54 for the COP.
The AJ found that complainant established a prima facie case of disparate
treatment based on race, color, sex, and reprisal. The AJ noted that the
agency presented a legitimate, non-discriminatory reason for its actions.
Specifically, the AJ found that complainant was provided work within her
medical limitations, the reasonable accommodation of an ergonomic chair
and work at a location within 30 minutes' driving distance from her home.
The AJ noted that complainant was placed on COP or LWOP only when no
work was available within her medical restrictions. The AJ noted that
the agency testified that complainant's medical restrictions were often
unclear because they came from nine different doctors and changed as
complainant's medical conditions worsened. With regard to issue (2),
the AJ noted that the agency stated that complainant received invoices
from the agency when her COP was changed to LWOP and when her annual
leave was changed to OWCP hours pursuant to ordinary and established
business and accounting practices. The AJ found complainant failed to
present sufficient evidence of pretext.
With regard to her claim of harassment, the AJ found that complainant
failed to provide sufficient proof that that she was subjected to
harassment that was sufficiently severe or pervasive to alter the
conditions of her employment. Specifically, the AJ noted that complainant
was not allowed to work whenever her ergonomic chair could not be found
and when her medical restriction of a 30 minute commute could not be
complied with due to an absence of work. As to the monetary demands due
to the TACS adjustments, the AJ noted that these demands occurred as a
part of the agency's accounting policy, and not to harass complainant.
With regard to her claim of denial of reasonable accommodation, the AJ
noted that a request for a shorter commuting distance due to a disability
triggers the agency's responsibility under the Rehabilitation Act.
The AJ noted that complainant testified that on May 13, 2005, June 9,
2005, July 5, 2005, August 26, 2005, January 11, 2006, March 16, 2006,
and March 28, 2006, she requested a shorter commuting distance (20 or 30
minutes each way) as a reasonable accommodation. The AJ noted that Person
X, Manager, Human Resources, and Chairman of the Mid-Carolinas District
Reasonable Accommodation Committee (DRAC) testified that on June 10,
2005, he received a letter from complainant with medical documentation
requesting a transfer to the Shelby Post Office because it was within 20
minute driving restriction imposed by her doctor. The AJ noted that
after receiving her request Person X researched her job history and
learned that complainant had incurred five on-the-job injuries in the
past five years, including an accepted claim for a shoulder injury in
January 2004, an accepted claim for a lower back injury in July 2003,
and an accepted claim for a hip and leg injury in February 2003.
The AJ noted that on June 29, 2005, Person X notified complainant in
writing that the Department of Labor and OWCP would make a determination
with regard to her conditions. On July 6, 2005, complainant renewed her
request for an accommodation. On July 12, 2005, Person X explained to
complainant that since she had three accepted OWCP claims, the Eastern
Area Injury Compensation Shared Services Center (SSC) in conjunction with
OWCP would make a determination on her case, including whether she could
be reassigned to another work location. The AJ noted that on July 13,
2005, Person X notified complainant that because she would not recover
from spinal fusion surgery for several months and because her medical
restrictions were temporary, she lacked sufficient medical documentation
to prove she was a qualified individual with a disability; and therefore,
the agency was not required to accommodate her.
The AJ found that the parties continued the interactive process from
July 2005 to March 2006 necessary to decide her accommodation request.1
The AJ found that after complainant's doctor limited her driving time in
March 2006 to 30 minutes each way to/from work complainant was taken out
of work. Complainant requested an accommodation of a 30 minute commute.
Complainant was out of work from March 22, 2006, until November 2006,
when she was given a modified assignment in Shelby, North Carolina as an
Automated Postal Center Director. The AJ noted that this position was
within seven minutes driving distance from complainant's home. The AJ
found that the agency provided complainant with a reasonable accommodation
when it gave her the modified job assignment in Shelby, North Carolina.
The AJ found that the assignment was both adequate for her medical
restrictions and timely given the unforeseen extenuating circumstances
of complainant's multiple on-the-job injuries, multiple surgeries, nine
physicians providing restrictions, and recovery periods from surgery.
The agency subsequently issued a notice of final action fully implementing
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant claims that the agency failed to accommodate
her restriction of being required to commute no more than 30 minutes at
a time. Complainant states that the agency took the wholly inconsistent
position that it could reasonably accommodate complainant by reassigning
her to a fully funded job in Shelby, where she was within 30 minutes of
a commute from her home, if she were to revert to a part time flexible
employee, but that it could not accommodate her if she was willing to
maintain her seniority. Complainant states that the agency failed to
engage the union to see if it were willing to waive its rules or to
allow complainant the opportunity to work on a temporary detail.
ANALYSIS AND FINDINGS
The Commission notes that a number of witnesses appearing at the hearing
in this case testified by telephone. No objection by either party was
raised at the time of the hearing or on appeal. The Commission has held
that testimony may not be taken by telephone in the absence of exigent
circumstances, unless at the joint request of the parties and provided
specified conditions have been met. See Louthen v. United States Postal
Service, EEOC Appeal No. 01A44521 (May 17, 2006).2 In this case it is
clear that there were no issues of witness credibility that might have
been impacted by the taking of testimony telephonically. Under these
circumstances, even if it is assumed that the AJ abused his discretion
in this case by taking testimony telephonically, the Commission finds
that his action constituted harmless error.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
At the outset we find that the AJ properly dismissed issue (5), for
failure to state a claim. Specifically, we note that complainant does not
claim that she was denied the opportunity to submit her 3971's or that
she lost any pay or was subject to any disciplinary action as a result
of the agency's policy to no longer accept 3971's via facsimile.
Additionally, we find that issue (1) concerns, in part, complainant being
sent home on December 7, 2004, when her requested ergonomic chair was
lost, until the chair was found and she returned to work on December
9, 2004. We note that the Commission previously addressed this issue
in EEOC Appeal No. 0120064573 and will not address the same issue in the
present appeal. We will, for the purposes of this decision, assume that
the remainder of issue (1) was timely raised.
While complainant testified that prior to her return to work on March 7,
2006, Manager A told her that no chair would be ordered, we note that
complainant also testified that when she returned to work on March 7,
2006, an ergonomic chair was available for her use. The only other dates
complainant identified as intermittently being denied an ergonomic chair
was November 18, 2006, the first date that she worked at Shelby, North
Carolina and November 20, 2006, when she worked for forty-five minutes
and was then sent home since her ergonomic chair was not available.
With regard to the chair not being there on November 18, or November 20,
2006, we find there is no evidence that complainant's ergonomic chair was
deliberately taken from her. In fact, the testimony revealed that the
chair was missing due to some confusion surrounding complainant's start
at the Shelby location. Moreover, there is no evidence that the ergonomic
chair was ever misplaced because of complainant's protected bases.
Upon review of the record, we find the AJ's decision finding
no discrimination is supported by substantial evidence.3 After a
review of the record in its entirety, including consideration of all
statements submitted on appeal, the agency's notice of final action is
hereby AFFIRMED because a preponderance of the record evidence does not
establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 16, 2010
__________________
Date
1 We note that the record reveals that complainant worked at the agency's
Eastway Finance Station from March 7, 2006, to March 21, 2006, which
complainant testified involved a one-hour commute each way to/from work.
Complainant testified that when she returned to work on March 7, 2006,
an ergonomic chair was made available to her.
2 "In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless,
as is found in this case." Sotomayor v. Department of the Army, EEOC
Appeal No. 01A43440 (May 17, 2006).
3 We do not address in this decision whether complainant is a qualified
individual with a disability.
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0120072828
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072828