01966600
10-22-1998
Matilde Heffern, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Matilde Heffern v. United States Postal Service
01966600
October 22, 1998
Matilde Heffern, )
Appellant, )
) Appeal No. 01966600
v. ) Agency No. 1-G-927-1037-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq., and the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
appellant based on race (Hispanic), color (brown), sex (female), and
physical disability (bilateral tenosynovitis) when:
(1) she was required to submit medical documentation for a back condition;
(2) she was instructed to request light duty for that condition; (3)
she was harassed; and (4) she was treated disparately with regard to
the enforcement of agency policies.
BACKGROUND
Appellant filed a formal complaint in May 1995 in which she alleged
discrimination with regard to what have been identified as Issues 1
through 4. Following an investigation, appellant did not request a
hearing and the agency issued a final decision dated August 20, 1996,
finding no discrimination with regard to all four issues. It is from
this decision that appellant now appeals.
During the period in question, appellant was employed as a clerk at the
agency's facility in Santa Ana, California. The record reveals that
appellant was placed on light duty on November 7, 1994, as a result
of bilateral tenosynovitis, a condition affecting both of her wrists.
Appellant was seen by an orthopedist (Orthopedist) in November and
December 1994 and he prepared a report dated December 22, 1994, in
which he stated that, in addition to the bilateral tenosynovitis,
appellant had a "chronic cervical back strain." In this report, the
Orthopedist recommended that appellant sit while performing her duties.
Although the record does not contain a copy of this report, appellant
states that the Orthopedist stated that she would "require a chair with
appropriate back support rather than a rest bar."
The record reveals that the agency honored the seating restriction
by thereafter allowing appellant to sit while performing her duties.
In doing so, however, the agency informed appellant that she would
have to submit more complete information regarding her back condition.
The agency also informed appellant she would have to put in a request
for light duty with regard to the back condition.<1> Appellant refused
to take either action, repeatedly insisting that she did not have a
problem with her back. The record reveals that appellant resigned from
the agency in September 1995.
ANALYSIS AND FINDINGS
Issues 1 and 2
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
With regard to the bases of sex, race, and color, appellant can establish
a prima facie case of discrimination by demonstrating that she was
accorded treatment different than that received by similarly situated
nonmembers of her protected groups. Appellant can establish a prima
facie case based on disability by showing that she is an "individual with
a disability"; that she is a "qualified individual with a disability";
and that she was accorded treatment different than that received by a
similarly situated non-disabled individual. See Prewitt v. U.S. Postal
Service, 662 F.2d 292 (5th Cir. 1981).
Although it is not apparent that appellant has established a prima
facie case under any of the alleged bases, we find that the agency
articulated legitimate, nondiscriminatory reasons with regard to Issues
1 and 2. United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715 (1983). Specifically, the record reveals that the
reason appellant was asked to submit medical documentation relating to
her back was because the Orthopedist had recommended that, due to her
chronic cervical back strain, she should sit while performing her duties.
The record reveals further that the reason the agency asked appellant
to make another request for light duty was because it considered the
back condition to be a new injury which required further accommodation.
Accordingly, because the agency has met its burden of production, we
shall proceed to the third step of the analysis.
At this point, appellant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Appellant's
position is that she does not have a back problem and that the seating
restriction recommended by the Orthopedist was related to her bilateral
tenosynovitis. We find that the evidence of record suggests otherwise,
however. Not only did the Orthopedist find that appellant had a chronic
cervical back strain, but, according to appellant, he stated that she
would "require a chair with appropriate back support" [emphasis added].
Based on this evidence, we find that the Orthopedist based the seating
restriction, at least in part, on appellant's back condition. For that
reason, we find that the agency, insofar as allowing appellant to sit
was a further means of accommodating her, was justified in requesting
that she provide more information regarding her back condition.<2>
For that reason, we find appellant has not established pretext, and,
as such, has not established discrimination with regard to either Issue
1 or Issue 2.
Issue 3
It is well-established that an employer who creates or tolerates a
work environment which is permeated with "discriminatory intimidation,
ridicule, and insult" that "is sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment" is in violation of Title VII. Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993) (citing Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)). This same standard applies to the basis of
disability. See Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994). Although appellant alleges,
in effect, that the agency harassed her by making repeated requests
for medical information, we disagree. Not only have we determined that
these requests were appropriate, but they were clearly not sufficient,
in either their nature or severity, to create an abusive working
environment. Accordingly, we find appellant has not established that
she was discriminatorily harassed.
Issue 4
In alleging that she was discriminated against with regard to the
enforcement of agency policies, it appears that appellant is referring
to events already addressed in the context of Issues 1 and 2. For that
reason, and because we found no discrimination with regard to those
issues, we find appellant has not established discrimination with regard
to Issue 4.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against her as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
OCT 22, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Appellant, as noted, was already on light duty as a result of her
bilateral tenosynovitis. What this suggests is that the agency construed
the seating limitation as a further accommodation not related to the
tenosynovitis but to the back condition. As such, the agency required
appellant to make another request for light duty.
2 In this regard, the Rehabilitation Act permits employers to "make
inquiries or require medical examinations necessary to the reasonable
accommodation process...." Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix to 29 C.F.R. �1630.14(c).