Justina O. Ingram, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 9, 2002
01996867 (E.E.O.C. Jan. 9, 2002)

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.