01991240
10-25-2001
Kathy A. Meek, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Midwest Area Operations), Agency.
Kathy A. Meek v. United States Postal Service
01991240
October 25, 2001
.
Kathy A. Meek,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Midwest Area Operations),
Agency.
Appeal No. 01991240
Agency No. 4-I-500-0025-98
DECISION
Introduction
Complainant timely initiated an appeal from the final agency decision
(FAD), dated April 6, 1998, 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
Background
Complainant alleged that she was discriminated against on the basis of
retaliation (prior EEO activity) when she was ordered on December 12,
1997 for a Fitness for Duty Examination (FDE) on December 15, 1997.
She alleged that the discrimination dated back to March 1997 and continued
through March 1998, and included interrogation by the Postmaster (PM)
regarding medical information and derogatory comments by PM about her
work performance. She also alleged that her PS Form 3996, which requests
assistance on a route, was disapproved by PM, and the PM followed her
on her route.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier, PS 5, at the agency's Tama, Iowa facility.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on April 8, 1998.
The complainant's EEO Investigative Affidavit stated that she was not
alleging sex or sexual harassment discrimination. The investigator noted
that medical documentation was not made a part of the investigative file
because the complainant declined to sign a medical release form. 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. Complainant requested that
the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to meet the
burden of establishing that the agency's articulated reason for its
action was pretext.
Contentions on Appeal
On appeal, complainant noted concern that the agency erred when it
stated in its FAD that it did not receive a request from her for an
agency decision, when in fact, she did request a decision. Complainant
further noted that a witness misstated facts as to the witness's EEO
complaint record. Further she noted that the EEO investigator failed
to include in the file a letter, which she included, in which she stated
that it would make sense to interview another witness. She stated that
a corrected affidavit, submitted on appeal by the complainant, was not
in the investigative file. Complainant also alleged on appeal that
her rights to confidentiality had been violated when the PM allegedly
discussed her performance with others. Complainant's statement on appeal
did not challenge the FDE, although this was the primary incident that
led the complainant to file her EEO complaint.
Analysis and Findings
The Commission finds, that notwithstanding complainant's allegations
as to the inadequacy of the investigation, that there is sufficient
information in the record to be able to reach an appellate decision.
The complainant alleged that PM, from March 1997 to December 12, 1997,
questioned her concerning her health, physical condition, her feet,
and her performance. The complainant claimed that she was harassed
and singled out by PM, and that his actions were a result of her prior
EEO complaint concerning matters before his arrival, but of which he
was aware. The complainant had received a job discussion concerning
her performance, and on December 12, 1997, the PM ordered the FDE.
Reprisal Discrimination Allegations
Regarding the complainant's claim of reprisal, the Commission has
stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment
to constitute retaliation. Lindsey v. United States Postal Serv.,
EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual,
No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses
prohibit any adverse treatment that is based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity. Id.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The agency may rebut complainant's prima facie case by articulating
legitimate, nondiscriminatory reasons for its action, and if the agency
does so, complainant must show, by a preponderance of the evidence, that
the agency's reasons are a pretext for discrimination. The Commission
notes that the McDonnell Douglas analysis need not be adhered to in all
cases. In appropriate circumstances, when the agency has established
legitimate, nondiscriminatory reasons for its employment decision, the
trier of fact may dispense with the prima facie inquiry and proceed to
the ultimate stage of the analysis, that is, whether the complainant
has proven by preponderant evidence that the agency's explanations were
a pretext for actions motivated by prohibited discriminatory animus.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983).
Assuming, arguendo, that complainant has established a prima facie
claim of retaliation, the record revealed that the agency articulated a
legitimate, nondiscriminatory reason for the action at issue, specifically
that it was making health related inquiries and a FDE request that were
job related and consistent with business necessity.
The complainant failed to prove that more likely than not, the agency's
articulated reasons for its actions were a pretext for retaliation
discrimination for the complainant's prior EEO activity. In this regard,
the record contains a non-verbatim transcription of a conversation that
the complainant had with the PM on October 17, 1997. The transcription
indicated that the complainant provided doctor notes that she was under
treatment for her feet, that her feet hurt and that she worked with pain
all week, that the pain affected her work or pace rate, that her foot
problem was caused at work, and that she was not able to do as good a job
with her feet hurting. The complainant's ability to perform essential
job functions could be considered by the PM. Further, the record shows
that PM had observed the complainant on her route and was concerned
about her pace. The evidence is the complainant's own doctor's notes,
which were referenced in the transcription, that she was under treatment
for her feet, her own statements that her feet hurt, and that she worked
with pain for the week being discussed. In addition the PM has made
his own observations of the complainant on her route.
At all times, complainant retains the burden of persuasion and it is her
obligation to show by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Based on the evidence
discussed above, the Commission finds that complainant failed to meet
this burden of proof of reprisal discrimination.
Rehabilitation Act Allegations
While the complainant did not explicitly raise a claim under The
Rehabilitation Act,<1> the Commission will address the Act in its analysis
to the extent it is implicated by the agency's requirement that the
complainant undergo a medical examination.
The ADA provides that, after employment begins, an employer may make
disability-related inquiries and require medical examinations only if
they are job-related and consistent with business necessity, and the
employer has a reasonable belief, based on objective evidence, that an
employee's ability to perform essential job functions will be impaired
by a medical condition. This standard may be met when an employer knows
about a particular employee's medical condition, has observed performance
problems, and reasonably can attribute the problems to the medical
condition. In these situations, it may be job-related and consistent with
business necessity for an employer to make disability-related inquiries
or require a medical examination. An employer's reasonable belief must
be based on objective evidence obtained, or reasonably available to the
employer, prior to making a disability-related inquiry or requiring a
medical examination. EEOC Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees.(July 27, 2000).
The agency specifically asserts in this case that it was making health
related inquiries and a FDE request that were job related and consistent
with business necessity. As previously noted, the complainant's ability
to perform essential job functions could be considered by the PM.
The record shows that PM had observed the complainant on her route and
was concerned about her pace. Based upon the evidence discussed above,
the agency's reason is job-related and consistent with business necessity,
and is based on a reasonable belief which relies on objective evidence.
The Commission therefore finds that the evidence supports the finding
that the agency did not engage in disability discrimination.
Conclusion
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
_October 25, 2001
Date
1 Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. � 791 et
seq., was amended in 1992 to apply the standards in the Americans
with Disabilities Act (ADA),42 U.S.C. �� 12101-12117, 12201-12213
(1994)(codified as amended), to complaints of discrimination by federal
employees or applicants for employment.