0120051350
11-20-2007
Kristi Hamilton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kristi Hamilton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200513501
Agency No. 1G-787-0055-03
DECISION
Complainant timely filed an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint alleging
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(a).
During the period at issue, complainant was employed as a Mail Processing
Clerk, PS-5, at the agency's Waco Processing and Distribution Center
in Waco, Texas. On an unspecified date, complainant injured her
back while on the job, and filed a claim with the Office of Workers'
Compensation Program (OWCP). In February 2003, complainant requested
and was granted light duty from March 1, 2003 through March 31, 2003.
However, complainant did not report for duty.
The record reflects that complainant made a second light duty request, for
the period April 4, 2003 to May 2, 2003. Complainant submitted medical
documentation dated April 3, 2003, wherein her physician stated that
complainant was restricted to work six hours daily; that she could stand
or walk two hours per day; that she could life lift up to ten pounds;
that she could reach as tolerated; that she could only bend, squat, kneel
and twist for one hour per day, and that she could not climb at all.
On April 8, 2003, this second light duty request was again granted.
However, on April 23, 2003, the light duty request was subsequently
denied, based on significant side effects from complainant's medication.
The record reflects that on June 4, 5, and 8, 2003, complainant reported
for duty, working only four hours per day. The record reflects further
that complainant has not reported back to duty since June 8, 2003.
Moreover, the record reflects that OWCP released complainant for full
duty on June 12, 2003.
By letter dated September 29, 2003, an agency Human Resources Specialist
notified complainant that the OWCP had rendered a determination of
denial on her on-the-job injury claim. The Human Resources Specialist
stated that if complainant was disabled, or if she had any restrictions,
she could execute one of four options: (1) apply for light duty, in
accordance with the collective bargaining agreement, (2) request a
reasonable accommodation, (3) request a change of crafts, or (4) apply
for disability retirement if she was unable to perform the duties of
her designated craft position.
In an agency document identified as "Notice of Return to Duty," dated
October 24, 2003, an agency Manager notified complainant that she was
to report to duty by October 31, 2003, or she would face removal from
agency employment. The agency put complainant on notice to provide
documentation to support her continued absence from June 9, 2003 to
the date of the letter (October 24, 2003). The record reflects that
complainant did not provide the requested documentation.
On September 17, 2003, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of disability (back), and in
reprisal for prior protected activity when:
on April 19, 2003, and ongoing, complainant was subjected to a hostile
work environment when agency management repeatedly refused to accommodate
her by allowing her to work.
Following an investigation, complainant was informed of the right to
request a hearing before an Administrative Judge or alternatively, to
receive a final agency decision. Complainant requested a hearing but
later withdrew the request.
On October 18, 2004, the agency issued the instant final decision,
finding no discrimination. The agency determined that complainant did not
establish a prima facie case of disparate treatment because she did not
identify any similarly situated individual who was treated more favorably
under similar circumstances. The agency determined that complainant did
not establish a prima facie case of reprisal discrimination, finding
that complainant's prior protected activity was more than twenty-one
months before the filing of the instant complaint, and that too much
time had elapsed to establish the requisite causal connection.
Regarding the basis of disability, the agency found that complainant did
not establish a prima facie case. Specifically, the agency found that
complainant did not show that she is an individual with a disability
under the Rehabilitation Act because she did not show her impairments
substantially limited a major life activity. Moreover, the agency found
that complainant did not establish that management failed to provide her
with a reasonable accommodation by allowing her to work. The agency found
that complainant only provided one document from her physician indicating
that she was under restrictions, the April 3, 2003 document referenced
above; and that this document did not provide any information relevant
to the time period that the restrictions were to remain in place.
The agency further determined that complainant had raised a harassment
claim, but found that complainant did not establish a prima facie case of
a hostile work environment. The agency stated that various comments made
by management were isolated, and were insufficiently severe or pervasive
to alter the terms, conditions, or privileges of complainant's employment.
Moreover, the agency stated that assuming complainant established a
prima facie case of disparate treatment, discrimination on the basis of
disability, or a hostile work environment, agency management nevertheless
articulated legitimate, non-discriminatory reasons which complainant
did not show were pretextual.
On appeal, complainant, through her attorney, argues that the agency
"improperly failed to conducts a timely and complete investigation"
relating to her claims. Complainant argues further that she had sustained
an on-the-job injury and "was diagnosed and treated for her back injury at
the [agency's] expense." Complainant also argues that she had engaged
"regularly in EEO activity between the dates of April 2003 and June
2004."
In response, the agency argues although complainant claimed she had a
back condition, she failed to provide any evidence showing she had an
impairment that substantially limited one or more of her major life
activities during the relevant time. The agency further argues that
complainant's temporary impairment is not a disability within the meaning
of the Rehabilitation Act. Furthermore, the agency argues that it had
no obligation to create another light duty assignment for complainant.
Reasonable Accommodation
Under the Commission 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. See 29 C.F.R. � 1630.9.
The employee must show a nexus between the disabling condition and the
requested accommodation. See Hampton v. United States Postal Service,
EEOC Appeal No. 01986308 (July 31, 2002).
For the purposes of analysis, we assume arguendo, and without so finding,
that complainant established that she is a qualified individual with
a disability. Moreover, we note the following salient facts supporting
a determination that the agency did not fail to provide complainant
with a reasonable accommodation. The Commission determines that the
agency sought to accommodate complainant, as follows. The Manager,
Processing and Distribution (Manager) stated that as a Mail Processing
Clerk, complainant could not perform the duties based on her physician's
statement. The Manager stated that the physician's statement, indicated
that complainant " was taking medication with side effects and she would
not be able to lift or stand for a period of time." The Manager stated
that the agency made a reasonable effort to accommodate complainant
by contacting other branches to ascertain if they could accommodate
complainant, without success. Moreover, the Manager stated that
the agency provided complainant a light duty assignment from March
1, 2003 to March 31, 2003, but that complainant failed to report
to duty. Specifically, the Manager stated "the [agency] identified
and proposed accommodation from March 1 - 31, 2003 for the complainant
and the complainant reported to work to my understanding two years.
The complainant did not report to work nor did she call the [agency]
regarding her intent to return to work."
Disparate Treatment
A claim of disparate treatment is examined under the three-party 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
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. See
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. See 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.
See 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. See U.S. Postal
Service Board 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 Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. The Manager stated that the agency provided complainant
a light duty assignment from March 1 to March 31, 2003 but that
complainant failed to report to work. The manager further stated "due
to complainant's restrictions as specified by her attending physician,
management was not able to accommodate complainants request for a light
duty assignment" during the relevant time. Furthermore, the Manager
stated that she did not discriminate against complainant based on her
prior protected activity, and that "not granting light duty was based
solely on the physician's statement and the postal services ability to
provide light duty at the time of the request." Moreover, complainant
has not established that the agency's reasons, as discussed above,
were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
Applying these principles to the facts in this case, we concluded that
the record does not support a determination that the alleged incidents
constitute a discriminatory hostile work environment.
After a careful review of the record, the Commission AFFIRMS the agency's
final decision 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
November 20, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120051350
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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