0120080411
03-18-2010
Flordeliza B. Cruz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Flordeliza B. Cruz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080411
Hearing No. 230-2005-00205X
Agency No. 1J-483-0011-05
DECISION
On October 24, 2007, complainant filed an appeal from the agency's
September 21, 2007 final order concerning her 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. Pursuant to 29 C.F.R. � 1614.405, the
Commission accepts complainant's appeal. For the reasons that follow,
the Commission AFFIRMS the agency's final order.
Complainant contacted an EEO counselor on December 5, 2006, and she
filed her formal complaint on March 9, 2007, alleging that the agency
discriminated against her on the basis of disability (left shoulder
injury) when, in October 2004, (a) she was not allowed to work her bid
position; (b) she was sent to light duty work; and (c) she was charged
AWOL (absent without official leave). Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Prior to the hearing, the AJ granted complainant's motion to add a claim
of harassment/hostile work environment. On February 16 and 17, 2007,
the AJ held a hearing, and, on September 19, 2007, he issued a decision,
finding that the agency did not discriminate against complainant.
BACKGROUND
At the time of these events, complainant worked at the agency's Detroit,
Michigan, Processing and Distribution Center, with a seniority date of
May 6, 1989. Upon hire, she was assigned to perform manual mail sorting
duties. In about July 2002, the agency eliminated its LSM machines and
combined the duties of mail processors, distribution clerks, and optical
reader operations into the single position of mail processing clerk.
The agency consolidated the duties of all three jobs, pursuant to an
agreement with the union on May 9, 2002. Complainant continued to work
primarily in the manual section, but when the automation section required
additional help to run its machines, the supervisor selected manual
operators in order of reverse seniority. During 2004 through 2006,
the agency had a staffing shortage, and, on a regular basis, 10 to 12
manual clerks were sent to automation for about three hours of work.
Because complainant ranked thirty-second out of 38 employees in the
manual section, she was often called upon to work in automation within
her extant restrictions. 1 While complainant preferred to work in the
manual area, her position required that she also work the automated
machines when needed.
In March 2004, complainant was informed that, if she needed to limit
her work assignments on a temporary basis, she could apply for light
duty and supply supporting medical information. Complainant contended
that she wanted to work her "bid job," that is, the manual clerk job
she held before the job changes in July 2002, and not be assigned to
the automation section. When she refused to work in automation without
having filed a request for light duty and medical documentation, she was
sent home and assigned sick leave, if she had hours available. In April
2004, she requested temporary light duty for two weeks with new temporary
medical restrictions, and the agency granted her request.2 Over the next
two years, when complainant requested light duty and submitted supporting
medical documentation, the agency granted her request. When she did
not submit a request for light duty or did not renew her request (with
medical documentation) every 30 days, the agency denied her requests.
In October 2006, complainant returned to work without restrictions and,
as of the agency's post-hearing findings of fact dated March 29, 2007,
continued to work both manual and automated assignments as assigned.
The AJ's Decision
The AJ adopted the agency's findings of fact (FoF).3 The AJ addressed
complainant's complaint as allegations of disability discrimination,
disparate treatment, and a request for reasonable accommodation. First,
the AJ found that complainant did not establish that she is an individual
with a disability, in that she did not show that she was substantially
limited in a major life activity. See 29 C.F.R. Part 30 and Appendix
to Part 1630-Interpretive Guidance on Title I of the Americans With
Disabilities Act; EEOC Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans With Disabilities Act (October 17,
2002).4 Complainant's limitations for her left arm were of intermittent
lifting restrictions of no more than 15 pounds, but she failed to submit
evidence that she was substantially limited in a major life activity,
and the agency did not regard her as an individual with a disability.
Next, the AJ held that, even if complainant established that she is a
qualified individual with a disability, the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., that she was assigned to
automation because of an increase in mail volume, her position required
manual as well as automation work, and her assignment to automation was
based on her seniority position. He also found that the agency showed
that complainant was never charged with AWOL and that she was assigned
to work within her limitations. Finally, the AJ found that complainant
did not demonstrate pretext.
The AJ held that complainant never sought a reasonable accommodation
when she was unable to work in automation. To the extent that she sought
temporary accommodation when she requested light duty, the agency granted
her requests. Thus, the AJ concluded that she was afforded a reasonable
accommodation when she followed agency rules for requesting light duty.
Last, with regard to complainant's claim of harassment/hostile work
environment, the AJ found that the agency's conduct was not sufficiently
severe so as to constitute illegal harassment.
Complainant filed two documents with regard to her claims on or about
October 16-17, 2007, that addressed the AJ's decision.5 Notwithstanding
that these filings were submitted after the AJ's decision and a week
prior to her appeal, we will consider them as complainant's statements
in support of her appeal. The first document, submitted to the AJ
approximately one month after his decision, consisted of her responses
to the agency's FoF. The second document, apparently sent to the AJ as
well, was her statement of disagreement with the AJ's decision.
ANALYSIS AND FINDINGS
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. We find
there is substantial evidence in the record to support the AJ's findings
of fact.
Complainant claimed that the agency discriminated against her based on
disability. Under the Commission's regulations, federal agencies may
not discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p). Initially, we must first determine
whether a complainant is entitled to coverage under the Rehabilitation
Act. See 29 C.F.R. Part 30 and Appendix to Part 1630-Interpretive
Guidance on Title I of the Americans With Disabilities Act. As a
threshold matter, a complainant claiming discrimination based on
disability must show that s/he is an individual with a disability within
the meaning of the Rehabilitation Act. An individual with a disability
is one who has, has a record of having, or is regarded as having an
impairment that substantially limits one or more major life activities.
29 C.F.R. � 1630.2(g). An impairment is substantially limiting when it
prevents an individual from performing a major life activity or when it
significantly restricts the condition, manner or duration under which an
individual can perform a major life activity. 29 C.F.R. � 1630.2(j). The
individual's ability to perform the major life activity must be restricted
as compared to the ability of the average person in the general population
to perform the activity. Id. Major life activities include caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. � 1630.2(i).
Once a complainant establishes that s/he is an individual with a
disability, s/he must show, in addition, that s/he is a "qualified"
individual with a disability within the meaning of 29 C.F.R. � 1630.2(m).
A "qualified" individual with a disability is one who satisfies the
requisite skill, experience, education and other job-related requirements
of the employment position such individual holds or desires, and who,
with or without reasonable accommodation, can perform the essential
functions of the position. Id.
In general, disparate treatment claims are examined under a tripartite
analysis whereby a complainant 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 Corp. v. Green, 411 U.S. 792, 802-804 (1973); 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 Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful, the burden
reverts back to the complainant to demonstrate by a preponderance of the
evidence that the agency's reasons were a pretext for discrimination.
At all times, complainant retains the burden of persuasion, and it is
his/her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of further analysis, we assume, arguendo, without so finding,
that complainant is an individual with a disability and is entitled
to coverage under the Rehabilitation Act and that she established a
prima facie case of discrimination. The agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., that it acted based on
agency regulations, the union contract, and sound business judgments.
In response, it is a complainant's burden to demonstrate pretext, that is
to show that the reasons articulated by the agency for its actions were
not its true and real reasons but were taken in order to discriminate
against her and were influenced by legally impermissible criteria,
e.g., complainant's disability. See St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993). Complainant failed to present probative evidence
in support of her claims of discrimination.
Harassment based on an individual's protected status is unlawful.
The incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). An abusive or hostile working environment exists "when the
workplace is permeated with discriminatory intimidation, ridicule and
insult that is sufficiently severe or pervasive to alter the condition
of the victim's employment." Harris V. Forklift Systems, Inc., supra.
An alteration to an employee's working conditions exists if a tangible,
discrete employment action is taken, e.g., hiring, firing, transfer,
promotion, non-selection, or the agency's actions were sufficiently
severe and/or pervasive to create a hostile work environment. Usually,
however, a single incident or a group of isolated incidents will not be
regarded as discriminatory harassment. See Frye v. Department of Labor,
EEOC Request No. 05950152 (February 8, 1996); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); see also
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
As to her complaint regarding a charge of AWOL, complainant has not
shown, nor does the record demonstrate, that the agency charged her
AWOL, nor did it fail to provide her a reasonable accommodation in
accordance with its rules and the union contract. We do not find
that complainant was subjected to harassment, in that she did not show
that the agency's conduct was based on her medical condition or that
its actions were sufficiently severe or pervasive so as to create a
hostile work environment. Hurston v. United States Postal Service,
Appeal No. 01986458 (January 19, 2001), (citing, Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998)).
An abusive or hostile work environment exists "when the workplace is
permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the condition of the victim's
employment." Harris V. Forklift Systems, Inc., 510 U.S. 17 (1993).
An alteration to an employee's working conditions exists if a tangible,
discrete employment action is taken, e.g., hiring, firing, transfer,
promotion, non-selection, or the agency's actions were sufficiently
severe and/or pervasive to create a hostile work environment.
Throughout this litigation, complainant has insisted that the agency did
not allow her to work her "bid job" in the manual section. Complainant
did not recognize that her "bid job" no longer existed but has become,
by merger of several positions in July 2002, a mail processing clerk with
duties in the manual and automated sections. Although she acknowledged
to the AJ that her bid position in manual operations no longer existed,
she soon reverted to her claim to her "bid job." That complainant failed
to understand and accept her situation is not the responsibility of the
agency.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision, because the AJ's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
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
March 18, 2010
Date
1 In August 1998 and September 2000, she sustained injuries off the job
to her left shoulder and had a lifting restriction for her left arm of
15 pounds.
2 Complainant contacted an EEO counselor on June 10, 2005, and
filed a formal complaint on September 8, 2005, alleging disability
discrimination when she was sent home on various dates in June and
July 2005, having been told that no work was available within her
restrictions and that, if she wanted to work, to apply for light duty.
The agency dismissed her complaint, and she did not file an appeal.
See Agency No. 1J-483-0086-05.
3 The Commission has, in the past, admonished administrative judges for
the wholesale adoption of an agency's FoF when no hearing has been held.
Here, however, the agency prepared the FoF following the hearing, at the
specific request of the AJ. The agency served the FoF on complainant,
and she responded on October 16, 2007, a month after the AJ's decision.
4 These documents are available on the Commission's website at
www.eeoc.gov/federal.
5 Complainant also filed untimely documents in December 2007. 29 C.F.R. �
1614.403(d). Complainant raised two new issues in these filings
concerning pay issues in the grievance process and a pre-disciplinary
interview. The Commission has held that it is not appropriate for
complainant to raise new claims for the first time on appeal. See Hubbard
v. Department of Homeland Security, EEOC Appeal No. 01A40449 (April 22,
2004). Should she wish to pursue these claims, complainant is advised
to contact an EEO counselor to begin the administrative process.
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0120080411
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080411