01A31825
06-10-2004
Kelly J. Butler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kelly J. Butler v. United States Postal Service
01A31825
June 10, 2004
.
Kelly J. Butler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31825
Agency No. 4H-335-0297-00
Hearing No. 150-A2-8045X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
BACKGROUND
Complainant was a Distribution Clerk at the agency's Lakeland Processing
& Distribution Center in Lakeland, Florida. The record indicates that
complainant was injured in 1995. In 1997, complainant experienced a
re-injury resulting in the diagnosis of left cervical and left trapezius
muscle sprain. By August 2000, the diagnosis was chronic cervical
sprain/myofacial pain syndrome.
During the relevant time, she was assigned duty from 7:00 p.m. to
1:30 a.m. On July 15, 1999, complainant wrote a letter to the Plant
Manager informing him that the work after midnight required casing letters
or flats. She noted that such repetitious work wore on her ability to
perform due to her arm. She indicated that while the Plant Manager was
on detail from April 26, 1999 through June 28, 1999, she was permitted
to work from 5:30 pm to 12:00 am. She asked that the Plant Manager move
her end time to midnight due to the pain and possible further injury the
work after midnight would cause her. The record also contained several
documents from complainant's physician (CP1) requesting that the agency
provide complainant work within her restrictions. The CP1 particularly
stated that complainant should maintain a work schedule during the
daytime. The CP1 also provided a note dated June 22, 1999, stating
that complainant cannot case letters and flats due to the repetition
of this job requirement as this aggravates her injury. On March 7,
2000, the CP1 wrote to the agency's physician (AP) indicating that his
rationale for working daytime hours was to provide a full nights rest to
her muscles and avoid household chores or other daytime activities where
complainant would have to use the muscles and then continue to use the
muscles at night at work. He also noted that when complainant adhered
to this regime, her medication usage declined significantly as did her
requirement for injection therapy. Therefore, it was obvious to him as
the treating physician, that complainant had significant improvement
when under the regime guidelines. Complainant's representative also
requested that she be assigned duty during daytime hours.
Based on the CP1's letter, the AP recommended that complainant undergo
a fitness for duty examination (FFDE). The Plant Manager requested that
the agency set up such a FFDE. The FFDE was scheduled for May 23, 2000.
Complainant failed to appear for the scheduled FFDE. She subsequently
failed to appear for FFDE's scheduled for June 13, 2000 and June 27, 2000.
Complainant showed up for part one of the FFDE scheduled on August
14, 2000. Part two was planned to occur on August 22, 2000, however,
complainant did not return under protest. Finally, complainant completed
part two of the FFDE on October 31, 2000. The FFDE found that complainant
had chronic cervical strain with myofascial pain syndrome and that she was
not suitable for occupation as a distribution clerk. The FFDE physician
recommended daytime work hours in order for complainant to establish a
regular sleep pattern and so that her productivity during the day would
significantly improve while her pain complaints and symptoms could be
kept at a minimum. The FFDE Physician also noted that complainant
demonstrated the following abilities: unassisted walking; climbing;
lifting maximum of eleven pounds; pushing maximum of thirty-two pounds
and pulling of twenty-nine pounds; squatting; bending; sitting; standing;
carrying eight pounds for twenty five feet; and finally over head and
forward reaching. He also believed that complainant can work eight
hours a day at any time between the hours of 7:30 a.m. to 9:00 p.m.
During this time, the Plant Manager issued complainant a seven-day
suspension (Suspension) for having seven instances of unscheduled
absences during the year 2000 for: March 6, March 30, April 13, June 6,
June 30, and July 15 for a period of six hours each and July 13 for 3.85
hours. The record also indicates that complainant received a Letter of
Warning for thirteen instances of unscheduled absences on March 9, 2000.
Complainant did not contest the absences. In response to the Suspension,
complainant indicated that her schedule that ended at 1:30 a.m. caused
her to use LWOP for an hour and a half.
In addition, on August 24, 2000, complainant presented the 204B Supervisor
a request for leave for the same day for three and a half hours under
the Family Medical Leave Act (FMLA). On the back of the leave form,
complainant indicated that she had a migraine brought on by stress from
management and on-going harassment. The 204B Supervisor spoke with
complainant regarding the leave and stated that because she stated that
stress was the reason for her departure, she would have to provide medical
documentation indicating she was able to return to work. On August 26,
2000, complainant was presented a letter entitled Pre-Medical Clearance
Return to Work Following Extended Illness which she was to have completed
before returning. Complainant argued that a representative faxed in a
letter from another physician for her stress (CP2), however, the agency
did not receive any such fax. On January 3, 2001, the agency informed
complainant that they had not received any medical documentation regarding
her stress. On a letter dated November 29, 2000, CP1 added a handwritten
statement dated December 12, 2000, indicating that complainant is without
hazard to herself or others. The agency subsequently offered a permanent
light duty position to complainant on or about February 8, 2001.
Believing that the agency's actions were discriminatory, complainant
filed an EEO complaint alleging discrimination on the bases of color
(White), disability, and reprisal when: (1) on July 26, 2000, she was
issued the Suspension; (2) on August 14, 2000, she was forced to attend
the FFDE; and (3) on August 25, 2000, she was not allowed to return to
work and advised via correspondence that she would need medical clearance
prior to return to work. The complaint was accepted for investigation.
Following the investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). Following the hearing, the AJ issued
his decision finding no discrimination.
As to complainant's claim of disability-based discrimination, the AJ found
that complainant failed to show that her condition substantially limited
her in a major life activity. He noted that complainant's condition was
described as �6% permanent impairment.� However, the AJ determined that
this did not appear to constitute a substantial limitation. Further,
the AJ found that complainant was not limited as to her ability to work
simply because she can only perform light work or during daylight hours.
Accordingly, the AJ concluded that complainant was not an individual
with a disability for purposes of the Rehabilitation Act.
Even assuming complainant established her prima facie case of
discrimination, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. As to the suspension,
the agency indicated that it issued the disciplinary action based on
complainant's absences. As to the FFDE, the agency sought information
regarding complainant's condition in order to provide her with a
reasonable accommodation. Finally, as to the request for medical
clearance, the agency noted that its handbook requires documentation to
show that an employee is not a harm to themselves or others. In addition,
the AJ determined that complainant failed to establish that the agency's
reasons were pretext for discrimination.
Therefore, the AJ concluded that complainant did not show that the
agency's actions were discriminatory. The agency's final action
implemented the AJ's decision. This appeal followed.
On appeal, complainant argued that she is an individual with a disability.
Further, she notes, through her representative, that she has claimed
harassment in violation of the Rehabilitation Act through a class action
under review by the Commission.<1> Finally, she contends that stress
is not a mental condition which requires medical documentation stating
that she is not a harm to herself or others. The agency provided the
complaint record without comment.
ANALYSIS AND FINDINGS
Standard for Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. Applying the
standard set forth above, the Commission has thoroughly examined the
record, and we find that the record does contain substantial evidence
to support the AJ's finding of no discrimination.
Fitness For Duty Examination
Initially, we note that the AJ analyzed the FFDE issue under a disparate
treatment theory of discrimination. The analysis of whether complainant
was a person with a disability need not be addressed as the limitations in
the Rehabilitation Act regarding disability-related inquires and medical
examinations apply to all employees. The Rehabilitation Act was amended
in 1992 to apply the standards of the Americans with Disabilities Act
(ADA) to complaints of discrimination by federal employees or applicants
for employment. See EEOC Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act (Enforcement Guidance - Disability Related Inquiries),
No. 915.002 (July 26, 2000); Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities (March 25, 1997); and EEOC
Enforcement Guidance on Preemployment Disability-Related Questions
and Medical Examinations (Enforcement Guidance - Preemployment)
(October 10, 1995). Because the restrictions on employers with
regard to disability-related inquiries and medical examinations apply
to all employees, and not just to those with disabilities, it is not
necessary to inquire whether the employee is a person with a disability.
Enforcement Guidance - Disability Related Inquiries, p. 3. Instead,
we focus on the issue of whether the agency's order that complainant
undergo a Fitness-for-Duty examination was lawful.
The Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquires or require medical
examinations of employees only if it is job-related and consistent with
business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally,
a disability-related inquiry or medical examination of an employee
may be "job-related and consistent with business necessity" when an
employer "has a reasonable belief, based on objective evidence, that:
(1) an employee's ability to perform essential job functions will
be impaired by a medical condition; or (2) an employee will pose
a direct threat due to a medical condition." Enforcement Guidance
- Disability-Related Inquiries, at 15-16. "Direct threat" means a
significant risk of substantial harm that cannot be eliminated or reduced
by reasonable accommodation. 29 C.F.R. � 1630.2(r). It is the burden of
the employer to show that its disability-related inquiries and requests
for examination are job-related and consistent with business necessity.
Enforcement Guidance - Disability-Related Inquiries, at 15-23.
As for the FFDE raised in claim (2), the record indicates that the Plant
Manager sought clarification of complainant's condition. He noted that
CP1 and complainant's representative indicated that complainant should
not work past 5:00 p.m. The Plant Manager testified that he received
numerous documents from CP1 and believed that there were conflicting
limitations between CP1 and complainant's statement of her limitations.
Further, the AP contacted CP1 in order to get clarification on the matter.
CP1 reiterated his stance on complainant working daytime hours and
explained how it related to complainant's chores. The AP wanted further
information on complainant's condition, therefore, he recommended a FFDE
in order to clear up the situation. The Plant Manager agreed and had
the medical unit set up the FFDE in order to determine complainant's
physical limitations and abilities. Upon review, we find that based on
the Plant Manager's apparent confusion as to complainant's request for
a reasonable accommodation, the FFDE was appropriate.
Medical Clearance under FMLA
As a result of complainant's request for leave under FMLA on August 25,
2000, she was not allowed to return to work and advised via correspondence
that she would need medical clearance prior to return to work as alleged
in claim (3). In the instant case, the agency required complainant
to submit certification from a physician before she could return to
work. Management explained that it requested the certification based on
complainant's statement to the 204B Supervisor that she was requesting
leave under FMLA because of a stress-induced migraine. We note that
employers are allowed to request medical certifications from employees
when they return from leave under the FMLA. See 5 C.F.R. � 630.1208(h).
Therefore, we find no violation as to claim (3).
Suspension
Complainant alleged that she was discriminated against on the bases
of color, disability, and prior EEO activity when she was issued the
Suspension. A claim of disparate treatment based on indirect evidence
is examined under the three-part analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to
prevail, he 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). For purposes of
analysis, we assume complainant is an individual with a disability.
Upon review, we find that the agency has provided legitimate,
non-discriminatory reason for its action. The record indicates that
complainant has been given several warnings regarding her attendance.
Despite the disciplinary actions, complainant's attendance failed to
improve. Based on the absences in increments of six hours, the length
of complainant's tour, on the various instances, the Plant Manager
recommended the Suspension.
The burden now shifts to complainant to establish that the agency's
reasons were pretext for discrimination. Complainant asserted that the
absences were due to the Plant Manager's failure to provide her with
a reasonable accommodation in the form of a work schedule which ended
by midnight. Complainant indicated that she would have to use one and
a half hours of leave in order to stop working by midnight. The record
indicates, however, that the leave usage in question was in increments
of six hours. Complainant does not explain her use of six hours of
leave without pay. Therefore, we find that complainant has not shown
that the leave for which she was given the Suspension was connected to
her assumed disability. Therefore, we conclude that complainant has not
shown that the agency's action was a violation of the Rehabilitation Act.
Further, complainant failed to show that the agency's reason was pretext
with regards to her color or prior EEO activity.
CONCLUSION
Therefore, upon review of the record as a whole, we AFFIRM the agency's
final action implementing the AJ's finding no discrimination.
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
June 10, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 We note that the class complaint mentioned on appeal is the subject
of EEOC Appeal No. 07A20059 and is not related to the matter at hand for
the class complaint specifically alleges disability-based discrimination
at a different agency facility. Further, complainant indicates that
her membership in the potential class is based on a claim of harassment
which was not raised in this instant matter.