01991844
01-09-2002
Juliana Wu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Juliana Wu v. United States Postal Service (Pacific Area)
01991844
January 9, 2002
.
Juliana Wu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01991844
Agency No. 1-F-927-0044-98
DECISION
INTRODUCTION
Juliana Wu (�complainant�) is appealing a final agency decision (�FAD�)
issued by her employer, the United States Postal Service (�the agency�).
In this FAD, the agency concluded that it had not unlawfully discriminated
against complainant by requiring her to accept a new (light duty)
position within the agency. Complainant believes that the agency did
indeed discriminate against her on the bases of her race (Asian),
national origin (Chinese), and sex (female) (in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. (�Title VII�)), her age (Date of Birth: 12/20/1956) (in violation of
the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq. (�the ADEA�)), and her disability (various neck, shoulder,
and back injuries) (in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. (�the Rehabilitation Act�)).
We, the United States Equal Employment Opportunity Commission (�EEOC� or
�the Commission�) accepted complainant's appeal pursuant to 29 C.F.R. �
1614.405(a). For the reasons set forth below, we find that the agency
did not discriminate against complainant on the bases of her race,
national origin, sex, age, or disability. Therefore, we affirm the
outcome announced in the FAD.
BACKGROUND
Complainant had been working for the agency since February of 1985.
On or around October 25, 1989, she held the position of �LSM Operator.�
On October 25, 1989, however, she was sent to a different department to
sort parcels, some of which weighed up to 50 pounds. As she picked up one
such heavy parcel and tossed it into a �hamper,� she apparently felt �like
something cracked in her [left] shoulder, low back and neck.� Report
of Independent Medical Examination (Aug. 27, 1997), at 2. She reported
this incident to agency officials and was sent to the agency clinic.
Xrays revealed no fractures or dislocations, and she was sent back to
work on modified duty (using her right arm only).
She subsequently raised a claim with the Office of Workers' Compensation
Programs (�OWCP�) at the U.S. Department of Labor (�DOL�). OWCP accepted
a claim for �left shoulder strain and partial tear of rotator cuff.�
OWCP's Letter to Agency (May 15, 1998). Complainant's injury(ies)
apparently worsened, however, and she was eventually forced to leave
work on temporary disability. She remained on temporary disability,
and out of work, for the next year and a half.
In June of 1991, she resumed work at the agency in a �Modified Clerk�
position, working for four hours a day only. She continued working at
this part-time job until sometime in early 1998. During this period
she sought the treatment of various doctors, who gave her conflicting
advice as to the causes and proper treatment for her ailment(s).<1>
In August of 1997, apparently at the prompting of the agency and/or
OWCP, an independent medical examiner (�IME�) was called in to evaluate
complainant's condition and reconcile the contradictory diagnoses of
complainant's personal physicians.<2> IME diagnosed complainant with
�left shoulder chronic impingement syndrome, tendonitis or partial
rotator cuff tear,� �chronic cervical strain,� and �chronic lumbar
strain.� Report of Independent Medical Examination (Aug. 27, 1997),
at 7. IME noted that:
Patient complains of frequent dull and sharp ache and feeling of heaviness
at the level of her right more than left nuchal and left interscapular
area, occasionally radiating to dorsal wrist. There is intermittent sharp
pain, spontaneous onset, and sensations of cramping, tearing, pulling and
tightness, occasional tingling numbness in left little and ring fingers.
Pain is increased if keeping same position too long, rotating to right
more than left, looking up or down, reading, doing overhead work, lifting,
reaching bra . . . . Since onset symptoms are worsening . . . .
Patient also complains of frequent dull more than sharp ache at the
level of her low back and lateral left thigh, mid third, increasing to
intermittent sharp pain. There is also sensation of pulling, radiation
of pain down to buttocks and tingling off and on. There is no numbness.
Pain increases when bending, squatting, sitting too long, turning,
keeping same position too long, lifting and making beds. Since onset
symptoms have remained the same . . . .
Concerning the cervical spine and left shoulder, this patient should be
given two options: On one hand, if she doesn't want to consider surgical
treatment, her condition could be declared permanent and stationary,
with access to pain medication, anti inflammatory medication, periods
of physical therapy for 2 weeks at a time and no more than 3 times a
year for a period of approximately 2 years. If symptoms persist, she
should have the opportunity of having trigger point injections, with or
without cortisone, no more than once or twice a year for the next 2 years.
If this is not enough to control her symptoms, this patient should also
have access to a cervical epidural block or laser debridement of the
rotator cuff with laser assisted acromioplasty and exploration of the
rotator cuff. If the tear has completed (last shoulder study was done
in 1990) then a small arthrotomy should be done and the rotator cuff
should be reattached. There is no indication for surgery at the level
of the cervical spine.
Concerning the lumbar spine, there is no indication for surgical
treatment. This patient should have access to further conservative
treatment, including pain medication, anti inflammatory medication,
periods of physical therapy 2 weeks at a time two to three times
a year for a period of 1 year. In case symptoms further increase,
consideration for an epidural block under fluoroscopic control and
contrast should be done. This is, in my opinion, the extent of what
we have to offer. The condition of the lumbar spine can be declared
permanent and stationary.
Also, concerning the left shoulder problem, if this patient does not wish
to have surgery now, her condition also should be declared permanent
and stationary . . . . [Complainant] is a qualified injured worker.
Originally, patient was a clerk, sorting mail, occasionally handling
packages between 20 and 50 lbs. This in my opinion is excessive for her
physical condition . . . . Based on the available information, neck,
left shoulder and low back symptoms were the result of the 10/25/89
industrial injury . . . .
Concerning the cervical spine and left shoulder problem, subjective
complaints are corroborated by objective findings: decreased range
of motion of cervical spine, mild decreased sensation ulnar aspect
left hand, decreased range of motion left shoulder, MRI findings left
shoulder suggesting impingement syndrome or partial rotator cuff tear.
Subjective complaints in those areas can be rated at the level of
intermittent slight to moderate. If this patient does not want to
have surgery on her left shoulder now, her condition could be declared
permanent and stationary with permanent restrictions precluding her from
heaving lifting and repetitive over the shoulder work . . . .
In my opinion this patient will be able to work with permanent disability
precluding her from very heavy lifting . . . . Patient will be able to
continue working 4 hours a day considering the above restrictions . . . .
Record of Independent Medical Examination (Aug. 27, 1997), at 3, 9.
In March of 1998, based in part on this independent medical examination,
the agency decided to reassign complainant. It sent her a letter on
March 30, 1998, stating:
A careful review of your current medical records indicate[s] that
placement into the [OWCP/Agency] . . . Rehabilitation Program is
beneficial for you and the [agency]. This Rehabilitation Job Offer
will meet the criteria of all your medical limitations . . . . All work
assignments will be in strict compliance with your medical restrictions
. . . . This job offer must be signed for your acceptance or rejection.
However your . . . failure to sign this job offer . . . will indicate a
statement of rejection. Furthermore, if [OWCP at DOL] determines that
you have refused a legitimate job offer, you[r] compensation benefits
may be discontinued . . . .
Agency's Letter to Complainant Offering Rehabilitation Program Job
(Mar. 30, 1998).
The Rehabilitation Program job offer was for the position of �Gate Monitor
- Message Taker,� Level 6A, with an annual salary of $38,437. The shift
for this position was from 11:00 p.m. to 7:30 a.m. Responsibilities
involved monitoring a television display screen for traffic entering
the agency and pressing buttons to open a gate (to enable vehicles to
enter the facility). The position description claimed that complainant
could �sit or stand at will� during duty hours, and that �no lifting
over the weight of a telephone receiver or pencil� would be required.
See Job Assignment and Physical Requirements Form (Apr. 6, 1998).
The agency told complainant that this particular job offer was being
sent to OWCP at DOL �for their acceptance� (i.e., to ensure that it
complied with complainant's medical restrictions, as documented by IME).
See Agency's Letter Notifying Complainant of Need for OWCP Acceptance
(Mar. 30, 1998). However, in the meantime, complainant concluded that
she could not perform the position offered. Her personal physician had
written OWCP, indicating that:
[Complainant] has recently complain[ed] of increasing severe left shoulder
pain, severe neck pain [which] radiates down to her left shoulder,
and constant severe back pain . . . . I would recommend physical
therapy to her neck, back and her shoulder. She is working four hours
in the night shift. That caused her inability to sleep and not [be]
able to obtain necessary physical therapy. I would also recommend her
to do light duty work in the morning shift so she could obtain physical
therapy following her work.
Statement of Complainant's Personal Physician (Mar. 23, 1998), at 2-3.
Perhaps as a result of this advice, complainant made a handwritten
notation on the position description provided to her by the agency,
stating that �[t]his job . . . is out of my medical restrictions.
I am only allowed to work 4 [hours] a day. My doctor did not sign this
job offer. Doctor's signature is needed first before my signature.� See
Annotated Job Assignment and Physical Requirements Form. Complainant also
apparently suspected that the agency action of requiring her to take this
new Rehabilitation Program job (ostensibly in violation of her doctor's
orders) was discriminatory. She consequently sought EEO counseling on
April 16, 1998.
In filling out the agency's EEO Request for Counseling form, complainant
explained that:
Management notified me by the way of a written job offer, dated
March 30, 1998, that I was to work 8 hours from 2300 to 0700. I am a
[Rehabilitation Program] employee that is restricted to a 4 hour shift.
My doctor also recommended that I work . . . from 0600 to 1000.
Agency's EEO Request for Counseling Form (June 25, 1998), at 1.
Complainant thus stated that she wanted �management to stop trying to
force me to work 8 [hours] and to allow me to work from 0600 to 1000
as per doctor's orders.� Id. at 2. An agency letter following-up on
complainant's counseling request similarly framed the issue as �job offer
has you working 8 hours, from 2300 to 0700, which is against Doctor's
restrictions.� See Agency's Letter Acknowledging Complainant's Request
for EEO Counseling (May 19, 1998), at 1.
Meanwhile, DOL had apparently concluded that the Gate Monitor -
Message Taker position was indeed �suitable to [complainant's] work
capabilities� (notwithstanding her medical limitations). See Agency's
Internal Memorandum (May 28, 1998). In a letter dated March 28, 1998,
IME had opined on complainant's ability to perform the Gate Monitor -
Message Taker job, specifically. He said:
I received [OWCP's] letter including job description pertinent to
[complainant]. The position title was �Modified Clerk,� and the physical
limitations included �no lifting over the weight of a telephone receiver
or pencil.� Also, you wanted to know if patient was able to work full
time �8 hours a day.�
As far as the lifting restrictions, I think they are adequate for
[complainant]. However, I doubt she will be able to sit for 8 hours
in the same position. She should be able to change positions at will.
My impression is that she couldn't sit for more than 45 minutes or stand
for more than half an hour. So changing positions is very important,
to keep this patient employed. Also, a head phone would be better than
a regular phone, even with a shoulder rest, to avoid prolonged positions
of the cervical spine.
IME's Second Report (Mar. 28, 1998).<3>
This report convinced OWCP.<4> On April 21, 1998, OWCP sent complainant
a letter, explaining:
You were offered a position . . . which we find to be suitable to your
work capabilities . . . . Upon acceptance of this position, you will
be paid compensation based on the difference (if any) between the pay of
the offered position and the pay of your position on the date of injury.
You still have the opportunity to accept the position with no penalty,
and we encourage you to do so.
You have 30 days from the date of this letter to accept the position or
provide an explanation of the reasons for refusing it. Without further
notice, at the expiration of 30 days, a final decision on this issue
will be made. If you fail to accept the position, any explanation
or evidence which you provide will be considered prior to determining
whether or not your reasons for refusing the job are justified . . . .
If you without reasonable cause refuse this employment, fail to report
for work when scheduled, or stop working in the new position, your
compensation benefits for wage loss or schedule award will be terminated.
You will retain entitlement to medical care for your work-related
condition.
Letter from OWCP to Complainant (Apr. 21, 1998).
Complainant replied, telling DOL that she could not accept the offer,
since it purportedly conflicted with her doctor's orders. On May 5,
1998, she signed the relevant line of the job offer form indicating that
she was officially rejecting the position. This prompted OWCP to write
back, declaring:
This letter is to advise you that this Office has determined that your
refusal [of the Rehabilitation Program job offered] is not justified.
You are being granted an additional 15 days to accept this position
without penalty. No further reason for refusal will be considered.
If at the end of this 15 days you still refuse the position, the
provisions of 5 U.S.C. 8106(c) will be enforced . . . .
5 U.S.C. 8106(c) provides that a �partially disabled employee who refuses
to or neglects to work after suitable work is offered to, procured by,
or secured for him, is not entitled to compensation.� This means that
ALL entitlement to monetary compensation will be forfeited.
Second Letter from OWCP to Complainant (May 22, 1998).
Not long after receiving this letter, complainant filed a timely formal
complaint with the agency's EEO office, alleging that the agency had
discriminated against her on the bases of her race, national origin, sex,
age, and disability when she �was put off work due to management forcing
me to work outside of my medical restrictions.� See Discrimination
Complaint No. 1-F-927-0044-98 (June 17, 1998), at 1.<5> As relief,
complainant requested that she be returned to work with full back pay
and benefits, and that she be allowed to work no more than four hours
per day �from 6 a.m. to 10 a.m.� Id.
The agency accepted this complaint for investigation. See Agency's Letter
Accepting Complaint for Investigation (June 30, 1998) (accepting, as the
issue for investigation, �[w]orking against doctor's restrictions�).
As part of this investigation, the agency requested, and complainant
submitted, an affidavit detailing complainant's side of the story.
She stated:
The new job offer that I received . . . totally contradicted my doctor's
restriction order and disregarded my current physical condition.
This new job will not help to improve my current physical condition,
but rather, may even worsen it. Please review my injury history within
the attached ten paged [IME] report dated August 27, 1997; the detailed
report clearly states my disability status and working restrictions.
[DOL] appointed this [IME]. Please review the three-paged report from
my treating physician . . . dated March 23, 1998 as well. The new job
offered to me [is] the Gate Monitor - Message Taker . . . . Prior to
being offered the Gate Monitor - Message Taker job permanently, I had
tried the job for two hours per day until June 10, 1998. Even these two
hours a day required me to force myself to work. The monitor is mounted
at the corner of the ceiling, and so I need to keep my neck extended
continuously to watch the monitor, which increased my neck and back pain
greatly.<6> I believe that I tried to the best of my ability to perform
the duty, but unfortunately, the job condition is not suitable for me
and it also contradicts my doctor's restriction orders. Due to these
facts, I refused to accept this job offer. The [agency], disregarding
these facts, enforced me to take the job or my compensation benefits
from [DOL] will be taken away. I feel that I was treated unfairly and
have been discriminated against due to my Asian race, Chinese origin,
female sex, age of 42, and disability rehabilitation status . . . .
Complainant's Affidavit (Aug. 1, 1998), at 1-2.
The agency's completed its investigation of complainant's claims on
September 14, 1998. See Record of Investigation (Sept. 14, 1998), at 1.
Soon thereafter, the agency sent complainant a copy of the record
of investigation, along with a letter explaining her EEO rights and
next steps. This letter explicitly informed complainant of her right
to request either a hearing before an EEOC administrative judge, or a
final agency decision on the merits of her case. See Agency's Letter
Remitting Record of Investigation (Sept. 18, 1998), at 1-2. The letter
also told her that if she failed to elect either of these options
within 30 calendar days of her receipt of the record of investigation,
the agency would issue a final decision on its own. See id. at 2.
Complainant never did request a hearing before an EEOC administrative
judge or a FAD. See Agency's Letter to EEOC Remitting Complaint File
(Feb. 22, 1999). Consequently, after the requisite 30 days had passed,
the agency issued a FAD. In this decision, the agency reviewed the
applicable law, and then stated that:
Record evidence discloses that the complainant failed to prove a prima
facie case of discrimination based on Race, Sex, National Origin, Age
and Physical Disability, when she was unable to demonstrate that she
had been treated differently than any other comparative employee in a
similar situation. Additionally, the agency was able to state legitimate
and nondiscriminatory reasons for its actions. Management testified the
complainant's medical restrictions were accommodated. The agency provided
testimony and supportive documentation that [DOL] found the complainant's
job offer to be suitable to her work capabilities. Management maintained
that all Federal regulations were complied with when the job offer was
made to the complainant. As the complainant was unable to show that the
agency's explanations were mere pretext for discrimination, she failed
to satisfy the burden of proving by a preponderance of the evidence that
she was the victim of intentional discrimination . . . .
After a review of the entire record, the [agency] finds that the agency
did not discriminate against the complainant based on Race, Sex, National
Origin, Age and Physical Disability.
Agency's Final Decision Finding No Discrimination (Dec. 3, 1998), at 4.
Complainant (through her union representative) filed a timely notice
challenging this FAD. We accepted this notice and docketed it as the
instant appeal. Neither party has submitted any substantive statement
in support of, or in opposition to, this appeal.
ANALYSIS AND FINDINGS
We therefore must determine whether there was any discrimination
committed here. Complainant argues that, by forcing her to take the
Gate Monitor - Message Taker position, the agency discriminated against
her in two distinct ways. First, she contends that she was treated
differently from other employees because of her race, national origin,
sex, and age. In other words, she is raising �disparate treatment�
claims under both Title VII and the ADEA. Second, she alleges that the
agency failed to accommodate her physical disability. That is, she is
bringing a �reasonable accommodation� claim under the Rehabilitation Act.
The agency, of course, disputes all these claims, and concluded in its
FAD that there had been no discrimination under any of these statutes
on any alleged basis.
Standard of Review
We have examined the propriety of the FAD at issue under the de novo
standard of review. See 29 C.F.R. � 1614.405(a) (providing that �the
decision on an appeal from an agency's final action shall be based on a
de novo review �). This essentially means that in deciding this case, we
were free to accept or reject the agency's factual and legal conclusions
at will. See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO-MD-110�), at 9-15 (explaining
that �[t]he de novo standard requires that the Commission examine the
record without regard to the . . . determinations of the previous decision
maker. On appeal the Commission will review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and the Commission will issue its decision based on the
Commission's own assessment of the record and its interpretation of the
law.�) Thus, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence supports
a finding of unlawful discrimination here. See 29 C.F.R. � 1614.405(a)
(stating that EEOC �shall issue a written decision [on an appeal from a
final agency action] . . . based on the preponderance of the evidence�).
We find that it does not.
Disparate Treatment Claims
We discern no basis to disturb the agency's rejection of complainant's
disparate treatment claims. Such allegations are properly analyzed
under a �burden shifting� paradigm developed over time by the United
States Supreme Court. Beginning with McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the high Court has issued a series of decisions
formulating an evidentiary framework which enables plaintiffs to prove
unlawful disparate treatment where direct evidence of such discrimination
(e.g., on a basis prohibited by Title VII or the ADEA) is lacking.<7>
See id.; see also Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).<8>
Under this Supreme Court precedent (commonly called the �McDonnell
Douglas� framework, after the case which first introduced it), whether
an employer intentionally discriminated against a complainant is a
question of fact. See, e.g., Aikens, 460 U.S. at 715; cf. Burdine,
450 U.S. at 255 n. 8 (pointing out that the purpose of this framework is
�progressively to sharpen the inquiry in to the elusive factual question
of discrimination�). The plaintiff must thus persuade the relevant
fact finder, by a preponderance of the evidence, that discrimination
actually occurred.<9> Accordingly, an evidentiary �burden of production�
is placed initially on the complainant to put forth a prima facie case
of discrimination. The plaintiff may do so by presenting facts which,
if unexplained, reasonably give rise to an inference of discrimination
(i.e., that a prohibited consideration was a factor in the adverse
employment action). See, e.g., McDonnell Douglas, 411 U.S. at 802;
see also St. Mary's Honor Center, 509 U.S. at 510 n. 3. This prima
facie case �serves an important function in [employment discrimination]
litigation: it eliminates the most common nondiscriminatory reasons for
the plaintiff's rejection . . . [and] in effect creates a presumption
that the employer unlawfully discriminated against the employee . . . .�
Burdine, 450 U.S. at 253-254; cf. Furnco Construction, 438 U.S. at 577
(providing that a �prima facie case under McDonnell Douglas raises
an inference of discrimination . . . because we presume these acts, if
otherwise unexplained, are more likely than not based on the consideration
of impermissible factors . . .�).
If complainant successfully establishes such a prima facie case, the
burden of production then shifts to the employer to rebut complainant's
presumptive showing. That is, the defendant must articulate legitimate,
non-discriminatory reasons for its ostensibly objectionable conduct.
See, e.g., McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor
Center, 509 U.S. at 506 (noting that the McDonnell Douglas presumption
�places upon the defendant the burden of producing an explanation to
rebut the prima facie case�); and id. at 529 (Souter, J., dissenting)
(pointing out that �[p]roof of a prima facie case . . . serves as a
catalyst obligating the employer to step forward with an explanation
for its actions�). To satisfy this intermediate burden, �the employer
need only produce admissible evidence which would allow the trier of fact
rationally to conclude that the employment decision had not been motivated
by discriminatory animus.� Burdine, 450 U.S. at 257. This lawful
explanation must be �clear and reasonably specific.� Id. at 258, 260.
However, the defendant need not �persuade the [fact finder] that it was
actually motivated by the proffered reasons,� or �that the employment
action was lawful.� Id. at 254, 257; cf. Sweeney, 439 U.S. at 25 n. 2
(indicating that �under Furnco and McDonnell Douglas the employer's burden
is satisfied if he simply �explains what he has done' or �produc[es]
evidence of legitimate nondiscriminatory reasons.'� The employer,
in other words, need not �prove absence of discriminatory motive.�)
If and when the defendant offers such a lawful explanation, �the
presumption raised by the prima facie case is rebutted� and essentially
�drops from the case.� St. Mary's Honor Center, 509 U.S. at 507; see
also id. at 510-511 (clarifying that the �presumption, having fulfilled
its role of forcing the defendant to come forward with some response,
simply drops out of the picture�); and Burdine, 450 U.S. at 255 (similarly
stating that �[i]f the defendant carries [its] burden of production, the
presumption raised by the prima facie case is rebutted, and the factual
inquiry proceeds to a new level of specificity�).<10> Consequently, the
complainant must be given �an opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by the defendant were
not its true reasons.� Burdine, 450 U.S. at 253; see also St. Mary's
Honor Center, 509 U.S. at 507-508 (reaffirming that a complainant
must be afforded a �full and fair opportunity to demonstrate that the
proffered reason was not the true reason for the employment decision�).
In other words, the burden of production shifts (one last time) back to
the complainant to show that the explanation offered is but a pretext for
the employer's true, prohibited discriminatory intent.<11> See, e.g.,
McDonnell Douglas, 411 U.S. at 804, 807; and Burdine, 450 U.S. at 253.
But see St. Mary's Honor Center, 509 U.S. at 515 (explaining, however,
that �a reason cannot be proved to be �a pretext for discrimination'
unless it is shown both that the real reason was false, and that
discrimination was the real reason� for the defendant's employment
action); id. at 519 (noting that �[i]t is not enough . . . to disbelieve
the employer; the fact finder must believe the plaintiff's explanation
of intentional discrimination�); and Reeves, 530 U.S. at 147 (clarifying
that �[p]roof that the defendant's explanation is unworthy of credence
is simply one form of circumstantial evidence that is probative of
intentional discrimination . . .�).<12>
In summary then, and quite critically, the complainant at all times
carries the ultimate burden of persuading the finder of fact � by a
preponderance of (albeit circumstantial) evidence � that the complainant
was a victim of intentional discrimination. See, e.g., Sweeney, 439
U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens,
460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518;
and Reeves, 530 U.S. at 143. In this case, complainant has failed to
carry this burden of persuasion. We have scoured the record for any sign
whatever that the agency was in fact motivated by a race-based, national
origin-based, sex-based, or age-based animus. We have found none.
Beyond the conclusory claims contained in complainant's complaint,
there simply is no evidence anywhere to support � much less prove by a
preponderance of the evidence � that complainant's race, national origin,
sex, or age played any part in the agency's decision to reassign her to
the Gate Monitor - Message Taker job. Thus, we cannot conclude that the
agency treated her disparately. We certainly cannot conclude that it
is more likely than not that the agency did so for any reason prohibited
by Title VII or the ADEA.
Reasonable Accommodation Claim
We therefore turn to the question of whether the agency may have violated
the Rehabilitation Act when it failed to accommodate complainant's
alleged disability. According to the Commission's regulations:
An Agency shall make reasonable accommodation to the known physical
or mental limitations of an applicant or employee who is a qualified
individual with [a disability] unless the agency can demonstrate that
the accommodation would impose an undue hardship on the operation of its
program . . . . Reasonable accommodation may include, but shall not be
limited to: (i) Making facilities readily accessible to and usable by
individuals with [disabilities]; and (ii) Job restructuring, part-time
or modified work schedules, acquisition or modification of equipment
or devices, appropriate adjustment or modification of examinations,
the provision of readers and interpreters, and other similar actions.
29 C.F.R. �� 1614.203(c)(1), (2).
We will assume for argument's sake that complainant is a �qualified
individual with a disability� for these purposes<13> (though we decline
to analyze and rule specifically on whether in fact she actually is).
The agency has never alleged that accommodating complainant would have
imposed an �undue hardship� on its operations. Cf. EEOC Directives
Transmittal No. 915.003, EEOC's Policy Guidance on Executive Order
13164: Establishing Procedures to Facilitate the Provision of Reasonable
Accommodation (Oct. 20, 2000) (web version), at 2. Thus, we will also
presume that the agency had a duty to accommodate complainant's alleged
disability (i.e., her neck, shoulder, and back condition(s)).
It looks to us like the agency focused almost exclusively on ensuring
that the Gate Monitor - Message Taker job met complainant's medical
restrictions for worker's compensation purposes. That is, while the
agency obviously tried to meet its duties under the relevant worker's
compensation regulations, we are not positive it ever consciously
considered its obligation to provide complainant with a reasonable
accommodation under the Rehabilitation Act. The two certainly are not
synonymous. See, e.g., EEOC Notice No. 915.002, Enforcement Guidance:
Workers' Compensation and the ADA (Sept. 3, 1996) (web version), at 15
(�An employer cannot substitute vocational rehabilitation services in
place of a reasonable accommodation required by the [Rehabilitation
Act] for an employee with a disability-related occupational injury.
An employee's rights under the [Rehabilitation Act] are separate from
his/her entitlements under a workers' compensation law.�)<14>
Nevertheless, the agency did engage complainant � through an exchange
of letters and medical reports � in a de facto informal, interactive
process in an attempt to ascertain the nature of complainant's condition
and the work limitations it caused. See 29 C.F.R. � 1630.2(o)(3) (�To
determine the appropriate reasonable accommodation it may be necessary
for the [employer] to initiate an informal, interactive process with the
[complainant]. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations.�); see also Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (Mar. 1, 1999) (web version), at 5 (�A request for a
reasonable accommodation is the first step in an informal, interactive
process between the individual and the employer.�); id. at 6 (�The
employer and the individual with a disability should engage in an
informal process to clarify what the individual needs and identify
the appropriate reasonable accommodation.�); 29 C.F.R. � 1630.2(o)
(app.) (�The determination of which accommodation is appropriate in a
particular situation involves a process in which the employer and employee
identify the precise limitations imposed by the disability and explore
potential accommodations that would overcome those limitations.�); and
29 C.F.R. 1630.9 (app.) (�[T]he employer must make a reasonable effort
to determine the appropriate accommodation.�).
For example, after the agency offered complainant what it believed to
be an appropriate reassignment, it gave her an explicit opportunity to
explain whether and why she could not accept it. See Letter from OWCP to
Complainant (Apr. 21, 1998) (�You were offered a position as a Modified
Clerk . . . which we find to be suitable to your work capabilities . . . .
You have 30 days from the date of this letter to accept the position or
provide an explanation of the reasons for refusing it. Without further
notice, at the expiration of 30 days, a final decision on this issue
will be made. If you fail to accept the position, any explanation
or evidence which you provide will be considered prior to determining
whether or not your reasons for refusing the job are justified . . . .�).
Complainant did respond, telling the agency that the job offered was
unsuitable, given her doctor's alleged orders. See, e.g., Annotated
Job Assignment and Physical Requirements Form. The agency rejected
complainant's view, of course, and determined that the Gate Monitor -
Message Taker position was in fact consistent with complainant's medical
restrictions and would suffice to accommodate them. See OWCP Memorandum
(Apr. 21, 1998); Letter from OWCP to Complainant (Apr. 21, 1998); and
Second Letter from OWCP to Complainant (May 22, 1998).
We agree with the agency. While complainant may have believed that the
position offered was untenable, her protestations are not paramount.
To be sure, the suggestions and preferences of an employee seeking
reasonable accommodation are highly relevant and must be considered.
See, e.g., Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web
version), at 6 (�[S]uggestions from the individual with a disability may
assist the employer in determining the type of reasonable accommodation
to provide.�); cf. 29 C.F.R. � 1630.9 (app.) (�[T]he preference [in
reasonable accommodation] of the individual with a disability should be
given primary consideration.�) However, an employer is not required to
provide the precise reasonable accommodation an employee wants, so long
as the employer provides a reasonable accommodation that is effective.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Mar. 1, 1999) (web version),
at 8 (�The employer may choose among reasonable accommodations as long
as the chosen accommodation is effective�); cf. id. at 4 (�While an
individual with a disability may request a change due to a medical
condition, this request does not necessarily mean that the employer
is required to provide the change.�) It is the agency providing the
accommodation which �has the ultimate discretion to choose between
effective accommodations . . . .� 29 C.F.R. � 1630.9 (app.).
As this Commission has noted:
The reasonable accommodation requirement is best understood as a means
by which barriers to the equal employment opportunity of an individual
with a disability are removed or alleviated . . . . Equal employment
opportunity means an opportunity to attain the same level of performance,
or to enjoy the same level of benefits and privileges of employment
as are available to the average similarly situated employee without a
disability . . . . The accommodation, however, does not have to be the
�best� accommodation possible, so long as it is sufficient to meet the
job-related needs of the individual being accommodated.
29 C.F.R. � 1630.9 (app.).
We credit the agency's attempts to find a position that was consistent
with complainant's �job-related needs� (even if this search was conducted
in the workers' compensation context). It seems the agency made a
significant, conscious effort to reassign complainant in a role that
would �meet the criteria of all [her] medical limitations,� and be �in
strict compliance with [her] medical restrictions.� See Agency's Letter
to Complainant Offering Rehabilitation Program Job (Mar. 30, 1998);
see also OWCP Memorandum (Apr. 21, 1998). Moreover, based on the record
before us, we believe the agency was successful in this search. That is,
we believe, based on a preponderance of the evidence, that the duties
of the Gate Monitor - Message Taker were consistent with complainant's
abilities and alleged disabilities.<15> While we might wish complainant
had been happier with the particular position the agency picked, we cannot
hold the agency liable simply because the reasonable accommodation it
selected (however effective) was also unpopular. Therefore, we cannot
find that any disability discrimination occurred here.
CONCLUSION
For the foregoing reasons, we conclude that the FAD at issue must,
in its entirety, be affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate
United States District Court within ninety (90) calendar days from the
date that complainant receives this decision. If complainant files a
civil action, complainant 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 complainant's case in court. �Agency� or
�department� means the national organization, and not the local office,
facility or department in which complainant works. If complainant files
a request to reconsider and also files a civil action, filing a civil
action will terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
(�Right to File A Civil Action�).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 9, 2002
__________________
Date
1�During the 1-1/2 years she was off work she was told by two
. . . orthopedists that she needed open surgery (rotator cuff) and a
third orthopedist advised arthroscopy. [Complainant] was confused by
various opinions. Since then she has had 15 cortisone injections and
has also been told that L2-3 was �displaced.'� Report of Independent
Medical Examination (Aug. 27, 1997), at 2.
2According to a memorandum prepared by OWCP, �the [complainant's]
treating physicians, [Doctor 1 and Doctor 2] have continuously precluded
the claimant from returning to a full-time modified position due to
a myriad of conditions, only one of which is accepted as being the
result of the injury of 10/25/1989 � left shoulder strain. A second
opinion examiner, [Doctor 3], opined . . . that the [complainant] was
capable of working eight hours per day with the only restriction being
no repetitive raising of the left arm above the shoulder level. Due to
the conflict of medical opinion, the [complainant] was referred to [IME]
to resolve the conflict.� OWCP Memorandum (Apr. 21, 1998), at 1.
3When we first examined the record, this letter from IME was not in it.
We therefore requested that the agency provide it to us. The agency
did so, on December 13, 2001. See Agency's Response to EEOC's Request
for Additional Information (Dec. 13, 2001) (containing a copy of the
IME letter dated March 28, 1998).
4In an internal memorandum dated April 21, 1998, OWCP noted that
�[t]he claimant [i.e., complainant] is permanently restricted from
heaving lifting and repetitive over-the-shoulder work. Further, she
should be able to change positions, from sitting to standing, at will.
In accordance with these restrictions, the [agency] has offered the
claimant a position as Gate Monitor; the duties of this position are:
taking telephone messages and viewing a monitor to watch incoming vehicles
at the facility and pushing a button to activate the gate for entry.
This modified position allows the claimant to sit and stand at will.
Additionally, at the recommendation of [IME], the claimant will be
provided with a headset phone to avoid any prolonged positioning of the
cervical spine. Based on the nature of the claimant's injury, the present
degree of physical impairment, the claimant's age, usual employment, and
qualifications for other employment, the offered position is determined
to be suitable.� OWCP Memorandum (Apr. 21, 1998), at 1.
5In an agency form entitled �Informal Complaint of Discrimination� filled
out before complainant filed her official complaint, complainant alleged
(again) that she had been discriminated against �in that . . . the job
offer has her working 8 hours which is against her doctor's restrictions.�
See Agency's Informal Complaint of Discrimination (Undated), at 1, 2.
Despite being raised in her request for counseling, her rejection of the
agency's offer, and this informal complaint, this precise issue (i.e.,
being forced to work more than eight hours per day) was not raised
explicitly in her formal complaint.
6This contention contradicts an earlier statement by an OWCP official.
OWCP told the agency in May of 1998 that OWCP �did check . . . about the
location/position of the monitor(s) which [complainant] will be viewing
� all are at eye level on a counter directly in front of where she would
be sitting. The injury compensation specialist was good enough to go over
and take photos but when he faxed the copies, the images were too dark.
The photos are being sent to me and I'll try to make clear, clean
copies to be faxed to you.� OWCP's Letter to Agency (May 15, 1998).
When we could not find these photos in the record, we contacted the
agency and requested that additional copies of these pictures be sent
to us. The photos submitted by the agency (in response to our request)
appear to confirm OWCP's description of the location of the monitor(s)
in question. See Agency's Response to EEOC's Request for Additional
Information (Dec. 13, 2001) (containing copies allegedly taken of the
proposed work station in question, and appearing to show three monitors
positioned at or around the height of a typical counter-top).
7Such a procedural scheme is �crucial to the success of most [disparate
treatment] claims, for the simple reason that employers who discriminate
are not likely to announce their discriminatory motive,� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 534 (1993) (Souter, J., dissenting),
and �[t]here will seldom be �eyewitness' testimony as to the employer's
mental processes,� United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983). Consequently, the Supreme Court
has created an evidentiary �formula [that] does not require direct proof
of discrimination.� International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 358 n. 44 (1977).
8While the vast majority of these decisions dealt specifically with
alleged violations of Title VII, the Supreme Court has acknowledged that
this paradigm is applicable to disparate treatment claims brought under
other federal statutes, as well. See, e.g., St. Mary's Honor Center,
509 U.S. at 526 (�This framework has gained wide acceptance, not only in
cases alleging discrimination on the basis of �race, color, religion, sex,
or national origin' under Title VII . . . but also in similar cases, such
as those alleging age discrimination under the [ADEA].�); cf. Reeves,
530 U.S. at 142 (�This Court has not squarely addressed whether the
McDonnell Douglas framework, developed to assess claims brought under
. . . Title VII . . . applies also to ADEA actions. Because the parties
do not dispute the issue, we shall assume, arguendo, that [this] framework
is fully applicable here.�); and O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 311 (1996) (�We have never had occasion to decide
whether [the] application of the [McDonnell Douglas framework] to the
ADEA context is correct, but since the parties do not contest that point,
we shall assume it.�) We have similarly invoked the McDonnell Douglas
line of cases in appeals before this Commission brought under Title VII,
the Rehabilitation Act, and the ADEA. See, e.g., Pogash v. United States
Postal Service, EEOC Appeal No. 01994444 (Dec. 14, 2001); (applying the
McDonnell Douglas framework to a Title VII disparate treatment claim);
Reonas v. Department of Defense, EEOC Appeal No. 01A11720 (Dec. 17,
2001) (applying McDonnell Douglas and its progeny in a Rehabilitation
Act disparate treatment case); and Drucker v. Department of Agriculture,
EEOC Appeal No. 01991634 (Dec. 7, 2001) (applying the McDonnell Douglas
framework in the ADEA disparate treatment context).
9In a court of law, this fact finder is typically a jury or a judge.
In the case of an appeal of a final agency action brought before this
Commission, the Commission itself is often the fact finder.
10In Aikens, the Supreme Court appeared to indicate that if an employer
has articulated legitimate, nondiscriminatory reasons for its actions,
then the issue of whether the complainant had ever established a prima
facie case in the first place is moot. As the Court put it, �[w]here
the defendant has done everything that would be required of him if
the plaintiff had properly made out a prima facie case, whether the
plaintiff really did so is no longer relevant. The [finder of fact]
has before it all the evidence it needs to decide whether �the defendant
intentionally discriminated against the plaintiff.'� Aikens, 460 U.S. at
715 (quoting Burdine, 450 U.S. at 253); see also St. Mary's Honor Center,
509 U.S. at 533 n. 9 (Souter, J., dissenting).
11The Supreme Court in Burdine stated that, when the burden of production
shifts back to the complainant to demonstrate pretext, this burden of
production actually �merges with the ultimate burden of persuading the
[the finder of fact] that [the complainant] has been the victim of
intentional discrimination.� Burdine, 450 U.S. at 256; see also Aikens,
460 U.S. at 717 (Blackmun, J., dissenting). According to the Court
in St. Mary's Honor Center, though,�once the defendant has succeeded
in carrying its burden of production, the McDonnell Douglas framework �
with its presumptions and burdens � is no longer relevant. To resurrect
it later, after the trier of fact has determined that what was �produced'
to meet the burden of production is not credible, flies in the face of our
holding in Burdine that to rebut the presumption �[t]he defendant need not
persuade the court that it was actually motivated by the proffered reasons
. . . .'� St. Mary's Honor Center, 509 U.S. at 510. In other words,
once the employer articulates legitimate, nondiscriminatory reasons �the
shifted burden of production bec[omes] irrelevant,� and the fact finder
proceeds to the ultimate question of whether the plaintiff has proven
that the defendant intentionally discriminated against the plaintiff
on a prohibited basis. Id. at 507, 511; cf. Aikens, 460 U.S. at 714
(explaining that the sole remaining issue becomes �discrimination
vel non�).
12St. Mary's Honor Center and Reeves, taken together, solidify the
Supreme Court's stance that a fact finder's rejection of the employer's
legitimate, nondiscriminatory reason for its action does not compel
judgment for a plaintiff. See St. Mary's Honor Center, 509 U.S. at 511;
and Reeves, 530 U.S. at 146. However, as the Reeves Court pointed out,
�it is permissible for the trier of fact to infer the ultimate fact
of discrimination from the falsity of the employer's explanation.�
Id. at 147. In appropriate circumstances, �the trier of fact can
reasonably infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.� Id. Thus, �[t]he
factfinder's disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the prima facie case, suffice to
show intentional discrimination.� Id. (quoting St. Mary's Honor Center,
509 U.S. at 511). Accordingly, a complainant need not always introduce
additional, independence evidence to prove discrimination occurred.
See id. at 149.
13A �qualified individual with a disability� is an �individual with a
disability� who, with or without reasonable accommodation, can perform the
essential functions of the position in question without endangering the
health and safety of the individual or others and who, either (1) meets
the experience or education requirements of the position in question;
or (2) meets the criteria for appointment under one of the special
appointing authorities for individuals with disabilities. 29 C.F.R. �
1614.203(a)(6). An �individual with a disability,� in turn, is one
who (1) has a physical or mental impairment which substantially limits
one or more of such person's major life activities; (2) has a record
of such impairment; or (3) is regarded as having such an impairment.
See 29 C.F.R. � 1614.203(a)(1). A �physical or mental impairment� could
be (1) any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of various body systems (e.g.,
neurological, musculoskeletal, special sense organs, cardiovascular,
reproductive, digestive, respiratory, genitourinary, hemic and lymphatic,
skin, and endocrine); or (2) any mental or psychological disorder, such as
mental retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities. See 29 C.F.R. � 1614.203(a)(2).
�Major life activities� include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. See 29 C.F.R. � 1614.203(a)(3).
14This particular Commission guidance deals specifically with Title I
of the Americans with Disabilities Act of 1990, 42 U.S.C. � 12111 et
seq. (�the ADA�). However, the Rehabilitation Act was revised in 1992
to clarify that all legal standards applied under the ADA are applicable
to complaints of disability discrimination brought by federal workers.
See the Rehabilitation Act Amendments of 1992, Pub. L. 102-559 (1992);
and Section 501(g) of the Rehabilitation Act of 1973, 29 U.S.C. � 791(g).
Thus, EEOC interpretations of the ADA are relevant to the Rehabilitation
Act reasonable accommodation claim at issue here.
15Complainant offers no real compelling evidence proving either (1)
that she could not work eight hours a day or at night, or (2) that
she was unable to perform the task of watching the gate monitor(s)
in question. On the first issue, complainant cites IME's first report
and her own doctor's letter as support for her claim that she was not
able to work eight hours per day. See Complainant's Affidavit (Aug. 1,
1998), at 1-2. However, despite her contentions to the contrary, her
personal doctor never specifically said she could not work eight hours
a day. See Statement of Complainant's Personal Physician (Mar. 23, 1998)
(containing essentially only a recommendation that she not work the night
shift). Neither did IME. See Record of Independent Medical Examination
(Aug. 27, 1997), at 9 (noting only that �[p]atient will be able to
continue working 4 hours a day considering the above restrictions,�
but not even mentioning the night-shift issue); cf. IME's Second Report
(Mar. 28, 1998) (stating only that complainant probably would not �be able
to sit for 8 hours in the same position,� and again failing to explicitly
preclude complainant from working at night); cf. OWCP Memorandum (Apr. 21,
1998), at 1 (indicating that yet another doctor had explicitly opined
that complainant could work eight hours a day). On the second issue,
photographs directly contradict complainant's claim that the monitors
were mounted in a corner of the ceiling (and that viewing them thus
would require her to keep her next extended indefinitely and exacerbate
her condition). Compare Complainant's Affidavit (Aug. 1, 1998), at 2
with See Agency's Response to EEOC's Request for Additional Information
(Dec. 13, 2001) (containing copies allegedly taken of the proposed work
station in question, and appearing to show three monitors positioned at
or around the height of a typical counter-top). Complainant proffered
no explanation to counter this convincing evidence.