01996867
01-09-2002
Justina O. Ingram, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Justina O. Ingram v. United States Postal Service
01996867
01-09-02
.
Justina O. Ingram,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996867
Agency No. 1-D-271-0017-98
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
a preponderance of the evidence, that the agency discriminated against
her on the bases of race (Black) and disability (chronic depression and
central disc protrusion) when: (1) on March 31, 1998, management would not
reasonably accommodate her disability (central disc protrusion) causing
her to use leave without pay (LWOP) and filing a claim with the Office
of Workers' Compensation Programs, which caused a recurrence of another
disability (chronic depression); (2) on April 28-29, 1998, complainant
received harassing telephone calls from management; (3) on May 27,
1998, she was asked to sign a form giving permission for an exchange
of medical information which was subsequently circulated and proved
detrimental towards advancement opportunities; and (4) on August 16,
1998, she was given a limited duty offer which changed her work schedule.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Mail Processor at the agency's General Mail Facility in Greensboro,
North Carolina. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on September 24, 1998. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
her claim of discrimination. The agency determined that complainant did
not show her prima facie cases of discrimination. Assuming complainant
had established her prima facie cases, the agency found that it provided
legitimate, nondiscriminatory reasons for its actions. As to claim 1,
the agency determined that complainant was merely found by her supervisor
(Supervisor 1) sitting on the job. She was told to get up. When she
refused to follow Supervisor 1's order, she became enraged. In claim
(2), complainant alleged that she received harassing telephone calls
from management. The agency stated that the record shows that the
telephone calls were made to learn about complainant's conditions and
the reasons for her absences. Complainant also alleged that she signed
a form giving the agency permission to exchange medical information
and that the information was circulated and proved to be detrimental
towards advancement opportunities. In response to claim (3), the agency
found that the evidence did not support complainant's contention.
Complainant claimed that her chronic depression kept her from work.
In order for her to return to duty, complainant needed medical clearance
by the Nurse Administrator. The consent form was the agency's effort to
assist complainant in obtaining the necessary documentation to allow her
to return to work. Furthermore, the agency found that complainant's claim
that her medical information was circulated was without merit. The record
indicates that the medical information was used to authorize complainant's
return to work. Furthermore, the agency noted that complainant signed
the form voluntarily. Finally, as to claim (4), complainant was offered
a limited duty position based upon her limitations, availability of an
appropriate accommodation, and the work schedule. The agency found that
complainant did not demonstrate that the agency's reasons were pretext
for discrimination.
On appeal, complainant requests a hearing before an EEOC AJ. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Request for Hearing
We note that, at the end of the investigation, complainant received a copy
of the Report of Investigation and was informed of her right to request,
within thirty days of receipt of the report, a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant failed to make an election within thirty days,
as required by EEOC Regulation 29 C.F.R. 1614.108(f). Accordingly,
we find that complainant is not entitled to a hearing.
Reasonable Accommodation
In claim (1), complainant contends that the agency failed to provide her
with a reasonable accommodation. Under the Commission's regulations,
an agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with
a disability unless the agency can show that accommodation would cause
an undue hardship. 29 C.F.R. �1630.9. The Commission also notes that
an employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22,1997). As a threshold matter in
a case of disability discrimination under a failure to accommodate
theory, the complainant must demonstrate that she is an "individual with
a disability." For the purposes of this decision, we will assume that
complainant is an individual with a disability.
We find that the agency met its obligation to provide a reasonable
accommodation. Prior to March 31, 1998, there is no evidence that
complainant requested a reasonable accommodation. The record indicates
that complainant bid for a position which she was awarded. She alleges
that she was not permitted to work that position, but rather required to
work with the mail sorting machine.<1> Complainant does not assert that
she requested an accommodation when she was awarded the bid position
or when she was informed of what her position entailed.<2> On March
31, 1998, Supervisor 1 found complainant sitting while on duty at the
sorting machine and told her to get up. She indicated that she was tired.
Supervisor 1 insisted and then ordered complainant to get up. Complainant
refused again. Finally, she revealed for the first time to Supervisor
1 that her back was hurting. Supervisor 1 made some inquiries into her
condition, such as, asking whether it was a pre-existing condition and if
she had any limitations. Complainant responded in the negative to both
questions. Since complainant had hurt her back and informed Supervisor
1 that she had no prior medical documentation on the condition, she
was sent to an area hospital to obtain medical documentation. We find
that the agency did not refuse to provide a reasonable accommodation.
The agency only became aware that complainant's position negatively
impacted her back condition on March 31, 1998. Once Supervisor 1 became
aware of the situation and that she had no medical documentation, he and
the Supervisor of Distribution Operations (Supervisor 2), who was also the
Injury Compensation Supervisor, sent her to the hospital to obtain medical
documentation to determine her condition and limitation. Complainant
did not return to work the next day. Although she was released to full
duties on April 28, 1998, her depression kept her from returning to work.
Complainant returned to work when the agency offered her a limited duty
assignment starting August 13, 1998. Complainant does not contend that
this offer was not an effective accommodation. Accordingly, we find
that the agency met its obligations under the Rehabilitation Act.
In claim (4), complainant alleged that the agency provided her with
a limited duty position that accommodated her restrictions, however
it changed her work schedule. It is the Commission's position that
if more than one accommodation is effective, "the preference of the
individual with a disability should be given primary consideration;
however, the employer providing the accommodation has the ultimate
discretion to choose between effective accommodations." 29 C.F.R. �
1630.9; see also Enforcement Guidance, Question 9 (March 1, 1999); Polen
v. Department of Defense, EEOC Appeal No. 01970984 (January 16, 2001).
Thus, while complainant may be entitled to an effective reasonable
accommodation under the Rehabilitation Act, she is not entitled to the
accommodation of her choice. We note that complainant does not contend
that the accommodation is not effective, merely that the limited duty
position which was offered changed her work schedule. The record
indicates that the agency, when offering the limited duty position,
took into consideration complainant's restrictions, availability of an
appropriate accommodation, and coverage issues. Accordingly, we find
that the agency provided complainant with a reasonable accommodation
even though it was not the exact accommodation she wanted.
Disparate Treatment
In claims (2) and (3), complainant alleges that she was treated
differently than other individuals outside of her protected classes.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo that complainant established her prima facie cases
of race and disability discrimination, we find that the agency met
its burden. In claim (2), complainant alleges that she received
harassing telephone calls from management when she was out on sick leave.
The record indicates that when complainant indicated that she injured
her back, Supervisor 2 transported her to and from an area hospital.
Supervisor 2 had instructed complainant to conduct a followup visit with
the Occupational Medical Center (OMC). By April 28, 1998, complainant
had not returned to duty. Supervisor 2 was informed that the hospital
had released complainant but she had not gone to the OMC. Therefore,
she called complainant to learn about her condition and the reason for
her absence. Supervisor 2 indicated that complainant refused to speak
with her and would hang up the telephone. The record also showed that
complainant, to avoid calls from Supervisor 2, placed her telephone
temporarily out of service. As to claim (3), the record indicates that
the Senior Injury Compensation Specialist (Specialist) averred that on
April 23, 1998, complainant's physician had released her to full duties
from her physical condition, however, complainant was still out of
work based on her emotional condition. Since complainant had chronic
depression, the Specialist indicated that she had to be cleared by the
Nurse Administrator prior to returning to work. The Specialist wanted
to ensure that complainant obtained adequate documentation to allow her
to return to work.
Once we have found that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, the burden shifts to
complainant to demonstrate that the agency's reasons were pretext for
discrimination. Upon review, we find that complainant failed to do so.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___01-09-02_______________
Date
1 We note that the investigative record does not contain information as
to complainant's bid position. Complainant made these statements in her
affidavit, however, she did not raise the bid position as a claim within
her EEO complaint nor was it investigated. Accordingly, we will not
address the issue of whether the agency discriminated against complainant
when she was awarded a bid position but was placed in another position.
2 Complainant claims that the agency knew that she had been on light
duty over a period of time for her back.