01A01379
03-06-2003
Jo Ann Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Jo Ann Williams v. United States Postal Service
01A01379
March 6, 2003
.
Jo Ann Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01A01379
Agency Nos. 4G-752-1339-96i; 4G-752-0137-97
Hearing Nos. 310-98-5980Xi; 310-99-5042X
DECISION
Complainant timely initiated an appeal from a Final Agency Decision
(FAD) concerning her equal employment opportunity (EEO) complaints of
unlawful 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against: (1) on the bases
of race (African American), disability (head trauma, chronic cervical
thoracic and back pain), and reprisal (prior EEO activity) when on July
31, 1996, she was not provided a written, amended modified job assignment
within her limitations/restrictions; and (2) on the bases of disability
(head trauma, chronic cervical thoracic and back pain) and reprisal
(prior EEO activity) when on December 30, 1996, the injury compensation
specialist (RMO) provided false information to complainant's physician
(P1).
The record reveals that complainant, a distribution clerk at the
agency's Irving, Texas facility, filed formal EEO complaints with the
agency on October 24, 1996 and March 7, 1997, alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigations, complainant was provided a copy of the investigative
reports and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ concluded that complainant failed to prove
discrimination on any basis alleged.
The record reveals the following. Complainant sustained a work-related
head injury in 1990 which resulted in a head trauma, chronic cervical
thoracic and back pain. Complainant was unable to work for approximately
two years and then accepted a modified job offer in January 1992.
The record shows that at the relevant time period (in or about August
1995) P1 released complainant to work full-time with the following
restrictions: (1) lift/carry 24 pounds occasionally and 10 pounds
continuously; (2) push/pull 24 pounds occasionally; (3) sit eight hours
with rests; (4) stand one hour with rests; (5) walk one hour with rests;
(6) alternate sit/stand four hours with rests. Complainant's physician
also restricted complainant to commute during non-rush hour times.
On August 28, 1995, the agency, with the help of the Department of Labor,
Office of Workers Compensation Programs (DOL), offered complainant a
full-time modified job with four basic duties: (1) writing notices;
(2) filing change-of-address cards; (3) answering the telephone (taking
messages, answering customer inquiries, or getting the proper party to
take the call); and (4) lunch relief at the customer door.
Complainant raised several concerns regarding the job offer. However,
all of complainant's concerns, except complainant's start-time, were
resolved after the agency held a conference with the union and complainant
on May 1, 1996. While the DOL determined that the agency did not need to
accommodate complainant's driving restrictions, the agency agreed to move
complainant's start-time to 7 a.m. However, complainant argues that a 7
a.m. start-time was insufficient to accommodate her driving restriction.
Complainant alleges that she requires a 5 a.m. start-time.
The evidence shows that in an effort to obtain clarification with respect
to complainant's driving restrictions, RMO sent a follow-up letter to P1
advising him that complainant had been driving during rush hour when in
fact she was not. Initially, P1 relied on the information provided by
RMO to change his recommendation regarding complainant's tour hours to
allow for rush hour driving. However, upon learning of the incorrect
information provided by RMO, P1 notified the agency that complainant
could not commute during rush hour. Nevertheless, the record indicates
that the DOL considered the fact that P1 recommended an earlier start-time
before it advised the agency that complainant's driving restrictions
did not need to be accommodated.
AJ's Findings and Conclusions
The AJ determined that complainant failed to show she was qualified
to perform the essential functions of her position with or without an
accommodation. According to the AJ, complainant only spoke about how a
modified job could be created but not how she could perform an existing
agency job.
In addition, the AJ concluded that complainant failed to identify any
comparison employees outside her protected groups that were similarly
situated and who were treated more favorably. With respect to the
reprisal claims, the AJ concluded that complainant failed to prove that
the responsible management official knew of her prior EEO activity at
the time of the employment actions.
In addition, the AJ determined that the agency articulated legitimate,
non-discriminatory reasons for its employment actions. Specifically, the
AJ noted that the agency provided evidence that it sought to accommodate
complainant with job offers deemed appropriate by the DOL. In addition,
the AJ concluded that even if RMO misled P1 about complainant driving
during rush hours, no harm ensued because P1 corrected the information
and the DOL's decision was based upon P1's correct recommendation which
was rejected.
Lastly, the AJ concluded that complainant failed to prove pretext.
Specifically, the AJ noted that complainant's argument that the agency
failed to follow its own regulations was unpersuasive since complainant
was pointing to regulations that were not applicable. The AJ also
concluded that the agency actually provided the modifications agreed
upon by complainant and the fact that it was not put in writing did not
prove pretext.
Contentions on Appeal
On appeal, complainant argues that the AJ improperly denied complainant's
request to call the President of the Union (W1) to testify at the
hearing. She also argues that the AJ interfered with complainant's
attorney's questioning of RMO.
With regard to the merits of her claims, complainant contends that
the AJ failed to consider comparison employees who were treated more
favorably. Complainant also argues that the agency failed to follow its
own rules in relation to its Injury Compensation Programs. In support of
her reprisal claim, complainant argues that RMO was aware of complainant's
union activity.
Analysis and Findings
Administrative Judge Procedural Rulings
On appeal, complainant argues that the AJ improperly denied complainant's
request to call the President of the Union (W1) to testify at the hearing.
However, the record indicates that the AJ denied W1's testimony because
complainant failed to proffer that W1 possessed direct knowledge of
relevant facts despite being provided with the opportunity to do so.
For the first time on appeal, complainant argues that W1 had first-hand
knowledge of meetings that took place between the union and the agency.
Notwithstanding this assertion, complainant still fails to proffer what
information W1 can provide that is based upon direct knowledge and is
relevant to the issues herein. Accordingly, we find that the AJ did
not err when he denied W1's hearing testimony.
Complainant further alleges that the AJ interfered with complainant's
attorney's questioning of RMO. Moreover, complainant argues that the
AJ's interference �distracted [her] abilities� to prove that RMO was
not credible. Upon review of the hearing transcript, we disagree with
complainant's assessment of the AJ's conduct and find nothing improper
about his questioning.
Reasonable Accommodation:
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o); 29
C.F.R. � 1630.2(p). The Commission also notes that an employee must show
a nexus between the disabling condition and the requested accommodation.
See Storman v. Department of the Treasury, EEOC Request No. 05990112
(September 7, 2000).
Neck/Back Disability
Assuming, arguendo, that complainant's head trauma, chronic cervical
thoracic and back pain renders her a qualified individual with a
disability within the meaning of the Rehabilitation Act, we nevertheless
find insufficient evidence in the record to establish a causal nexus
between such disability and her request for a 5 a.m. start time. See,
e.g., Storman v. Department of the Treasury, EEOC Request No. 05990112
(September 7, 2000) (complainant failed to establish that there
was a nexus between his requested accommodation of working a reduced
number of hours per month, and the limitations imposed upon him by his
disabilities).
Stress Disorder
Although complainant only explicitly alleges a disability related to
her head injury in 1990 (i.e., head trauma, chronic cervical thoracic
and back pain), we find evidence in the record to support a claim that
complainant also has a stress disorder which restricts her driving
to non-rush hour times. The medical evidence provided to the agency
following the May 1, 1996 conference includes the following.<1> On May 6,
1996, P1 advised the agency that �traveling in heavy rush hour traffic
has caused re-aggravations in patient's condition.� In December 1996,
complainant's original treating physician advised the agency that �the
patient still has post traumatic stress causing anxiety from the head
injury. She gets panicky in heavy traffic which she needs to avoid.�
At the hearing, P1 testified complainant has a �panic-like syndrome�
and driving causes her to go into different states of hysteria and
hyperventilation.
In order to prove that the agency failed to reasonably accommodate
her, complainant must establish that she has a physical or mental
impairment that substantially limits one or more major life activities.
Major life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I of
the Americans With Disabilities Act, Appendix to 29 C.F.R. �� 1630.2(i).
The determination as to whether an individual has an impairment
which substantially limits a major life activity is made on a case
by case basis. Bragdon v. Abbott, 524 U.S. 624 (1998); Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix to
29 C.F.R. �� 1630.2(j). 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. Moreover, such limitations
must be long-term or potentially long-term, as opposed to temporary,
in order to render one an individual with a disability. See generally,
EEOC Enforcement Guidance on the Americans With Disabilities Act and
Psychiatric Disabilities (March 25, 1997) at question 10.
While complainant has articulated a claim that she was denied a reasonable
accommodation based upon her panic disorder, we, nevertheless, find the
record devoid of evidence to support a finding that complainant's panic
disorder substantially limited one or more of her major life activities.
In addition, there is no testimony or documentary evidence which indicates
the expected duration of complainant's panic disorder. Accordingly,
we find complainant's panic disorder does not rise to the level of a
disability within the meaning of the Rehabilitation Act.
Disparate Treatment:
Disability
With respect to complainant's disparate treatment claims, assuming,
arguendo, that complainant has established herself to be a qualified
individual with a disability under the Rehabilitation Act, we nevertheless
find insufficient evidence in the record that the agency failed to
put her job offer in writing because of her disability. The record
also shows that the agency relied on the advice of the DOL that the
proposed modified job offer was suitable to accommodate complainant's
restrictions.<2> In addition, the agency explained that it was unable
to move complainant's start-time to 5 a.m. because there was no work for
complainant at that time of day. However, in good faith, the agency
moved complainant's start-time to 7 a.m. which was the earliest time
when work would be available. Complainant provided no evidence to
rebut the agency's explanation. In addition, there is no evidence of
discriminatory animus in the record.
We find insufficient evidence in the record to conclude that RMO provided
P1 incorrect information because of complainant's disability. The record
indicates that complainant was provided a written job offer in August
1995, which was subsequently verbally modified. RMO contacted P1 in an
effort to clarify complainant's driving restrictions. While RMO provided
inaccurate information to P1, there is no evidence in the record that
RMO knew the information was inaccurate when she communicated with P1.
In addition, there is no evidence in the record that agency officials
held discriminatory animus on the basis of complainant's disability.
Reprisal and Race Discrimination
We also agree with the AJ and find insufficient evidence in the record
to support the conclusion that the responsible agency officials were
aware of complainant's prior EEO activity at the time of the employment
actions. In support of her reprisal claim, complainant argues that RMO was
aware of complainant's union activity. While the AJ noted this fact, he
also concluded that the record was devoid of evidence that complainant's
union activity involved protected EEO activity or that RMO believed that
complainant's union activity involved protected EEO activity.
With respect to complainant's allegation of race discrimination,
we find no evidence that similarly situated individuals outside
complainant's protected class were treated more favorably. Nor do
we find any other evidence that may give rise to an inference of race
discrimination. Complainant contends that the AJ failed to consider
comparison employees who were treated more favorably. Upon review of
the record, we find the alleged comparison employees were not similarly
situated to complainant. Complainant was the only employee who requested
such an early start-time.
Complainant also argues that the agency failed to follow its own rules in
relation to its Injury Compensation Programs. Specifically, complainant
argues that the agency was obligated to �make every effort toward
assigning [her] to limited duty consistent with [her] medically defined
work limitation tolerance. ...� We find that the evidence indicates
that the agency made a good faith effort to assign complainant to work
within her limitations. The agency even offered to move complainant's
start time to 7 a.m. However, even if we find that the agency failed to
follow its rules with regard to its Injury Compensation Program, this fact
alone, is insufficient herein to prove pretext or discriminatory animus.
Accordingly, and for the reasons set forth herein, the Commission AFFIRMS
the Final Agency Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 6, 2003
__________________
Date
1 The medical evidence regarding complainant's
impairment related to her driving restrictions were unclear prior to
the May 1, 1996 conference.
2 We remind the agency that reliance on DOL's recommendations does not
guarantee that it has complied with the Rehabilitation Act.