0120103085
08-23-2012
Evelyn A. Richards, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Evelyn A. Richards,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120103085
Hearing Nos. 470-2010-00029X & 470-2010-00172X
Agency Nos. 4J-460-0011-09 & 4J-460-0042-09
DECISION
On July 2, 2010, Complainant filed an appeal from the Agency's May 27, 2010 final decision concerning her equal employment opportunity (EEO) complaints 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). 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 Letter Carrier at the Agency's Post Office in Michigan City, Indiana. Between 2006 and 2007, the Department of Labor's Office of Workers' Compensation Program (OWCP) accepted two of Complainant's injury claims. In December 2007, while working in limited duty status, Complainant successfully bid on City Route 60001. Pursuant to Article 13 of the NALC-USPS Joint Contract Administration Manual - November 2005, which addresses, in part, "bidding while in light or limited duty," Complainant was required to provide medical certification indicating that she would be able to perform the duties of the bid position within six months of the bid. Article 13 further provided that management could grant a second chance, namely to give Complainant a second six months, to provide medical certification. In December 2008, twelve months after the bid, management informed Complainant that her most recent Form CA-17 indicated that she could not perform the regular work of a carrier and her bid would be disallowed. Effective January 3, 2009, Complainant became an unassigned regular. She continued to perform duties within her medical restrictions.
Complainant filed multiple grievances, and approximately two weeks later, on January 16, 2009, she and the Agency entered into two settlement agreements resolving the grievances. The bid was returned to Complainant, with its revocation being "null and void" for purposes of seniority. However, the route was adjusted insofar as one hour was "handed off."1 In addition, the settlement provided that Complainant would continue to be provided with the following accommodations: the use of a nutting truck, lightweight plastic trays for her mail, parcel lifting assistance, and permission to deviate from the mail volume casing threshold.
Complainant filed EEO complaints alleging that the Agency discriminated against her on the bases of disability and in reprisal for prior protected activity when management revoked her bid on City Route 60001 and in the months before the revocation harassed her with regard to a special route inspection, overly scrutinized her work, gave her inconsistent directions, denied her overtime, denied her reasonable accommodation and abused their power. 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 timely requested a hearing but subsequently withdrew her request. Consequently, 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.
ANALYSIS AND FINDINGS
The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities. See 29 C.F.R. Part 1630. A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m). 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.
Complainant argues that the provision of the collective bargaining agreement - requiring management to revoke bids of employees who, having assumed bids while on light or limited duty, cannot prove that they can perform the duties of the bid within a number of months - violates the Rehabilitation Act because it does not allow for consideration of the Rehabilitation Act's requirement to provide reasonable accommodation.
Complainant's position is not well taken. The purpose of requiring employees to, at some point, be able to perform the duties of a position on which they bid is to prevent employees from remaining in positions for which they are not qualified. The relevant provision does not state that employees must perform the duties of the position without reasonable accommodation. See NALC-USPS Joint Contract Administration Manual - November 2005, Article 13, [Complaint File at p.491]. Because the purpose of providing reasonable accommodation is to enable an employee to perform the essential duties of the position, an employee receiving reasonable accommodation would be able to prove that she could perform the duties of her bid position and would thus be entitled to "hold down" the bid. In this case, Complainant provided a Form CA-17 stating that she could not perform the regular work requirements of her position. This document, which was executed consistent with the Agency's OWCP obligations, was the sole basis for disallowing the bid. This document did not concern accommodations which Complainant sought or received pursuant to the Rehabilitation Act.
Complainant also argues that the provision of the collective bargaining agreement requiring light and limited duty employees to produce medical certification that they can perform the duties of the position for which they bid violates the Rehabilitation Act because the same requirement is not imposed on individuals without disabilities. Again, Complainant's point is not well taken. The collective bargaining agreement grants an employee who may not be immediately able to perform the duties of a position to remain in that position for up to twelve months before having to provide certification he or she can do the job. An employee, not on limited or light duty, is not required to produce such certification because he or she is required to perform the duties of the job immediately upon assuming it. Similarly, the Rehabilitation Act grants no such recovery or reprieve period. A qualified individual with a disability must be able to perform the essential functions of the position she assumes, with or without reasonable accommodation, immediately upon assuming it.
Assuming arguendo that complainant is a qualified individual with a disability, we do not find the Agency liable for denying Complainant reasonable accommodation. She was working in limited duty status in addition to being provided with the accommodations referenced above. There is no evidence to support a finding that disallowing the bid amounted to a denial of reasonable accommodation within the meaning of the Rehabilitation Act. Further, given that the collective bargaining agreement provides for a much more expansive form of accommodation, i.e., up to twelve months to prove the ability to do the job, we also do not find evidence from which we could draw an inference of discrimination sufficient to support a prima facie case of disability or retaliatory based disparate treatment.
Finally, to prove her harassment claim, complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis, in this case, disability or prior protected activity. Only if complainant establishes both of those elements, does the question of the Agency's liability for harassment present itself.
Upon review of the record, we find the conduct about which Complainant complains insufficiently severe or pervasive to create a hostile work environment. As noted above, Complainant was not denied reasonable accommodation. Most of the conduct alleged to be abusive amounted to management trying to manage Complainant, who herself was argumentative and evasive, resistant to authority and insisted on reducing every verbal request and instruction to writing. In addition, there is nothing to suggest that management's actions were motivated by Complainant's disability or prior protected activity. To the contrary, management was clearly trying to reduce overtime, calibrate appropriate route lengths, comply with OWCP and collective bargaining agreement obligations, and ensure the daily delivery of mail. We find no evidence of harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, and for the reasons set forth herein, we AFFIRM the Agency's final decision.
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
August 23, 2012
__________________
Date
1 According to management, Complainant required 1-4 hours of auxiliary assistance on a daily basis because she could not complete the route on her own. During the grievance negotiations, it became apparent that it was not clear whether the Complainant's inability to complete her route was due to her medical restrictions; her own inefficient work habits; because the route was too long; or a combination thereof. Management believed that if Complainant could curb her time wasting tendencies, she could work the reduced route without incurring overtime or otherwise needing assistance.
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0120103085
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013