0120080205
05-28-2010
Janice F. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Janice F. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120080205
Agency No. 4C400004307
DECISION
On October 12, 2007, complainant filed an appeal from the agency's
September 10, 2007 final decision 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., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the final
agency decision.
ISSUE PRESENTED
Whether the agency properly determined that complainant was not subjected
to unlawful discrimination based on her age and disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a full time Mail Processing Clerk at the agency's Shelbyville Post Office
facility in Shelbyville, Kentucky. On June 26, 2001, complainant's
doctor diagnosed her with possible severe Sacroiliac Joint Syndrome
and Degenerative Lumbar Disc Disease. As a result of this condition,
complainant is unable to stand for more than 15 minutes without
experiencing pain. Subsequently, complainant's previous postmaster
(PM1) accommodated complainant for her condition by giving her a
temporary light-duty assignment in 2001. This light-duty assignment,
which complainant worked for 5 years, required her to, among other
things, answer phones, sort mail, and clean carriers. Complainant also
operated the Carrier Sequence Barcode Sorter (CSBCS) machines. However,
complainant indicated that operating these machines caused her severe back
pain because she had to stand for long periods at a time. As a result,
PM1 provided complainant a stool to manually sort letters, so she no
longer had to work the machines. On November 13, 2006, complainant's
doctor submitted a letter to the agency stating that complainant had
a chronic back condition, which required work restrictions. These work
restrictions required that complainant: (1) not stand still for greater
than 10 minutes at a time, (2) sit for a maximum of one hour at a time,
(3) have a good seat with support, and (4) not lift greater than 25
pounds.
In February 2007, complainant's new postmaster (PM2) notified complainant
that her job had been abolished as a CSBCS machine operator because
the machines had been removed from the office. However, complainant
continued to work in her position after the machines were removed
even though her duties no longer involved the operation of these
machines. On March 6, 2007, PM2 told complainant to turn in a new
request for light-duty. PM2 also did not provide complaint with a stool
as requested for an accommodation. After complainant submitted the
new request for light-duty and after she worked 3.5 hours on March 6,
2007, she was sent home by PM2. PM2 told complainant there was no work
for her based on her light-duty restrictions. Complainant was home from
March 6 to March 19, 2007. As a result, she was forced to use 41 hours
of either sick leave, annual leave, or leave without pay to make up for
the hours that she was home. On March 9, 2007, PM2 submitted a formal
request to the District Reasonable Accommodation Committee (DRAC) to
assist complainant to receive a permanent light-duty assignment.
On April 16, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of disability (Sacroiliac Joint
Syndrome, Degenerative Lumbar Disc Disease, and mental stress) and age
(58) when:
1. on February 7, 2007, PM2 informed her that her job had been abolished;
and
2. on March 6, 2007, as well as on other occasions, she was sent home
and told that there was no work available for her within her limitations,
which forced her to use leave.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that she was subjected to discrimination as alleged.
In its Final Agency Decision (FAD), the agency found that
complainant failed to establish a prima facie case based on age
discrimination. Specifically, the agency found that complainant provided
no evidence that similarly situated employees outside of her protected
groups were treated more favorably. The agency noted that although
complainant alleged that PM2 gave her light-duty assignments to younger
PTF clerks, since complainant was a full-time unassigned clerk with
guaranteed 8 hours of work per day for 5 days week, PTF clerks were
not similarly situated to her. The agency found no additional evidence
that age was a determining factor pertaining to its actions. Moreover,
the agency found that PM2 submitted a formal request for permanent
light-duty to the DRAC to assist complainant in finding an 8-hour job
in the office.
The agency also found that complainant failed to establish a prima facie
case of disability discrimination because she failed to show that she
was an "individual with a disability." Specifically, the agency found
that there was no evidence that complainant's disability limited any
major life activity. The agency also found no evidence of disparate
treatment based on disability. In particular, the agency found that
complainant presented no evidence that she was treated differently than
any similarly situated individual not in her protected group.
Additionally, it its FAD, the agency found that complainant did not
establish a prima facie case of disability based on a denial of an
accommodation. Specifically, the agency found that complainant was not a
"qualified" individual with a disability. Additionally, the agency found
that complainant did not request any accommodation until PM2 requested
that she submit her light-duty request in writing. Additionally, the
agency found that complainant did not request any accommodations for
her alleged mental disability. Moreover, the agency again noted PM2's
request to the DRAC for permanent light-duty for complainant.
Lastly, the agency found that it articulated legitimate nondiscriminatory
reasons for its actions. In particular, the agency determined that
since complainant was a light-duty employee, she was not guaranteed
a particular set of job duties and that, pursuant to the Employee and
Labor Relations Manuel (ELM), light-duty employees are not guaranteed
a certain number of hours of work per week. As such, the agency found
that since PM2 could not find work within complainant's restrictions,
complainant could be sent home early. Additionally, the agency found
that complainant's position was abolished because the CSBCS machines
were removed from the facility, and complainant's duties, at one time,
involved the operation of these machines.
CONTENTIONS ON APPEAL
We find that complainant's brief in support of her appeal was filed more
than thirty days from the date of her appeal, is untimely, and will
not be considered. See 29 C.F.R. � 1614.403(d). Complainant filed her
appeal on October 18, 2007, but her brief in support of her appeal was
not filed with the Commission until April 21, 2008. Because the record
does not reflect that complainant sought an extension of time for filing
her brief, the Commission declines to consider her brief.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, 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").
Reasonable Accommodation
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); see generally 29 C.F.R. Part 30 and the Appendix to Part
1630-Interpretive Guidance on Title I of the Americans With Disabilities
Act; see EEOC Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans With Disabilities Act (October 17, 2002)
(Enforcement Guidance).
In order to be entitled to protection from the Rehabilitation Act,
complainant must show that she is a "qualified individual with a
disability." Assuming arguendo that complainant is an individual with
a disability within the meaning of the Rehabilitation Act, we conclude
that she has not proven, by a preponderance of the evidence, that she
is a qualified individual with a disability. 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 who,
with or without reasonable accommodation, can perform the essential
functions of the position. 29 C.F.R. � 1630.2(m).
In this instant matter, the record indicates that complainant could not
perform the essential functions required by her position. Complainant
requested an accommodation of a stool; however, given the requirements of
her position, a stool would not have enabled complainant to perform the
essential job functions. Complainant's medical restrictions indicated
that she could not stand still for greater than 10 minutes at a time,
could not sit for more than an hour, and could not lift anything
greater than 25 pounds. Complainant's position, however, required her
to sit and sometimes stand for extended periods of time which caused
her severe pain. Although complainant contends that work existed at the
agency that she could perform, complainant has not identified an actual
vacant, funded position at the agency that she could have performed at
the relevant time, and it is her burden to do so. Further, complainant
has been in a temporary light-duty position given to her by PM1 since
2001. We note that an employer is not required to create a job for a
disabled employee, nor is it required to transform its temporary light or
limited duty assignments into permanent jobs to accommodate an employee's
disability. See Mengine v Runyon, 114 F.3d 415, 418 (3d Cir. 1997); see
also Woodard v. United States Postal Serv., EEOC Appeal No. 01A21682
(July 29, 2003); EEOC Enforcement Guidance: Workers Compensation and
the ADA, EEOC Notice No. 915.002 at 21 (September 3, 1996).
Also, we note that on March 9, 2007, PM2 submitted complainant's request
for reasonable accommodation to DRAC to determine if an 8 hour permanent
light-duty assignment was available for her. Accordingly, complainant
has not established that she was discriminated against when the agency
failed to provide her with an accommodation.
Disparate Treatment
The analysis of claims of disparate treatment follows the three-step
scheme announced by the Supreme Court in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). First, the complainant must establish
a prima facie case or assuming that he has does so, the agency is
required to articulate a legitimate, nondiscriminatory reason for its
actions. To prevail, a complainant must demonstrate, by a preponderance
of the evidence, that the agency's reason(s) for its action was a pretext
for discrimination, i.e., that the agency's reason was not its stated
reason and that it acted on the basis of discriminatory animus. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Assuming argunedo that complainant established a prima facie case of
discrimination based on age and disability, the agency articulated
legitimate, non-discriminatory explanations for its actions. The agency
explained that it did not have work available for complainant within
her restrictions, and sent her home. Also, the agency indicated that
complainant's position was no longer needed because the CSBCS machines
were removed from the facility, and complainant's original position,
before she was assigned to a light-duty position, was the operation of
these machines. We find that complainant has not shown that the agency's
proffered explanations were pretext for disability discrimination. We
also find no evidence that the agencies actions were not motivated by
discriminatory animus.
CONCLUSION
After a review of the record in its entirety, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the Final
Agency Decision, because the record does not establish that unlawful
discrimination occurred as alleged.
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
_5/28/10_________________
Date
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0120080205
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080205
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