0120055116
03-23-2007
Mitzi Corpora, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mitzi Corpora,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200551161
Hearing No. 150-2004-0503x
Agency No. 4H327000304
DECISION
Complainant filed the instant appeal from the agency's June 22, 2005 final
decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Modified Clerk Assistant at the agency's Melbourne Post Office.
The record reveals that complainant was hired as a Rural Carrier Associate
in 1990. On January 25, 1999, complainant sustained an on-the-job injury,
and thereafter she was unable to perform carrier work. After surgery on
August 9, 2000, complainant returned to work in a limited duty capacity
on May 1, 2001.
On December 23, 2002, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of disability (back), age
(D.O.B. 11/11/49), and in reprisal for prior protected EEO activity when:
on September 5, 2003, the agency had not converted complainant's position
to a modified career position.
Following 180 days after the filing of her formal complaint, complainant
requested a hearing and the AJ held a hearing on May 20, 2005. On June 7,
2005, the AJ issued a decision finding complainant was not subjected to
discrimination on any of the alleged bases. With regard to her claim of
disability discrimination, the AJ found complainant failed to establish
she was disabled.
With regard to her claim of retaliation, the AJ noted that complainant
testified that six or seven years prior to the present case, she filed an
EEO complaint against a former manager. The AJ found complainant failed
to establish a prima facie case of retaliation. The AJ stated there
was no nexus between complainant's prior EEO activity, which occurred
six or seven years prior to this filing, with the action at issue in
this present complaint. The AJ found complainant failed to establish
that RMO 1 knew anything of her prior EEO activity.
With regard to her claim of age discrimination, the AJ noted that other
than self serving statements, complainant failed to show that age played
a role in her not being converted to career status.
Additionally, the AJ noted that RMO 1 testified that the agency's decision
not to convert complainant to a career status employee was based upon the
union/management contract provisions. The AJ noted that it is undisputed
that complainant could not and can not perform the functions of a Rural
Carrier. The AJ also noted that complainant did not bid on an open
position for Rural Carrier prior to her injury. The AJ noted that RMO 2,
the Manager of Human Resources for the Central Florida District, testified
that complainant cannot bid on a regular career carrier position until she
is able to perform all essential functions of the position. RMO 2 stated
that in order for complainant to qualify for a regular position in the
Clerk craft, complainant would have to take an examination and be able
to perform the minimum core requirements of the position. RMO 2 stated
that complainant could not meet the core requirements of the regular
position in the Clerk craft and did not take the Clerk exam.
The agency subsequently issued a final decision fully implementing the
AJ's finding that complainant failed to prove that she was subjected to
discrimination as alleged.
On appeal, complainant states she is not appealing the AJ's finding
that she failed to establish a prima facie case of age discrimination
or retaliation. With regard to her claim of disability discrimination,
complainant argues that the AJ did not make a decision on the merits as to
whether she was treated differently or whether the agency failed to make
a reasonable accommodation. Complainant states that the AJ incorrectly
found she was not disabled. Complainant states as a result of her back
surgery with a fusion of L1 through L5 she has permanent restrictions.
Complainant cites a letter from her doctor, Doctor A, July 31, 2001,
noting she has reached maximum medical improvement and describing her
various restrictions including minimal ability to reach above her
shoulder, squat, kneel, climb and limitations on pushing, pulling,
lifting more than 15 pounds. Complainant also notes in a November 13,
2002 letter, the agency's doctor, Doctor B, reported her permanent
restrictions to include "no repetitive bending, standing, pushing,
pulling or lifting." Complainant states that Doctor B also submitted
a Work Capacity Evaluation reiterating the July 31, 2001 evaluation.
Complainant argues the evidence in the record and her testimony reveal
that she could not push, pull, or lift in excess of 15 pounds and that she
was limited to four to six hours as to sitting, walking, and standing.
Complainant claims that the agency recognizes she is unable to perform
the carrier work she was hired to do since she is unable to lift, push,
and pull in excess of 15 pounds and is unable to sit, walk, or stand in
excess of four to six hours during a workday. Complainant claims she
was qualified to work in a career position with modifications and should
have been and still should be considered for career positions given her
seniority ranking.
In response to complainant's appeal, the agency acknowledges that as
a result of an injury suffered to her lower back, complainant suffers
from an impairment which she states limits her from running, exercising,
and doing "heavy duty" housework, and limits her to lifting, pulling,
and pushing no more than 15 pounds. The agency argues that a lifting
restriction of 15 pounds is not a substantial limitation on a major life
activity. The agency claims complainant has failed to identify that she
is substantially limited in any major life activity. Additionally, the
agency notes that for the first time on appeal, complainant is claiming
she was not granted a reasonable accommodation. The agency states that
complainant did not raise a reasonable accommodation claim during the
hearing and notes that this issue was not investigated.
ANALYSIS AND FINDINGS
The Commission notes that the testimony of RMO 2, Manager of Human
Resources, was taken via by telephone, without the objection of the
parties. The mere lack of an objection is not dispositive, however.
See Louthen v. United States Postal Serv., EEOC Appeal No. 01A44521 (May
17, 2006). The Commission has held that testimony may not be taken by
telephone in the absence of exigent circumstances, unless at the joint
request of the parties and provided specified conditions have been met.
See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521
(May 17, 2006).2 However, since the facts of this case pre-date Louthen,
we will assess the propriety of conducting the hearing telephonically
by considering the totality of the circumstances. Here, it is unclear
whether exigent circumstances existed. On the other hand, it is
clear that there were no issues of witness credibility that might have
been impacted by the taking of testimony telephonically. Under these
circumstances, even if it is assumed that the AJ abused her discretion
in this case by taking testimony telephonically, the Commission finds
that her action constituted harmless error.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
At the outset, we note that on appeal complainant states she is not
challenging the AJ's finding of no discrimination on the bases of age
and retaliation. Thus, the Commission will not address these bases on
appeal.
Upon review, we find that the agency articulated legitimate,
non-discriminatory reasons for its actions. Complainant failed to present
evidence that the agency's actions were motivated by discriminatory
animus toward complainant's protected class. Here, we assume arguendo
that complainant is disabled pursuant to the Rehabilitation Act.
We do not address whether complainant is a disabled individual under
the Rehabilitation Act. The preponderant evidence does not show
that discrimination occurred. With regard to the agency's failure to
convert complainant's position to a modified career position, we find
the agency articulated legitimate, non-discriminatory reasons for this
action: complainant was unable to perform the essential functions of a
rural carrier position and is therefore precluded under the collective
bargaining agreement from obtaining a bid position in career service.
Complainant failed to show that the agency's explanation was a pretext
for discrimination. The AJ found, and we agree, that "complainant failed
to produce any document stating an entitlement to a career position."
Furthermore, the AJ found that "[c]omplainant has been unable to perform
the essential functions of a rural carrier position and is therefore
precluded from obtaining a bid position in career service." There is
simply no indication that the agency's interpretation or implementation
of the collective bargaining agreement was in any way motivated by
consideration of complainant's purported disability.
Finally, for the first time on appeal, complainant is attempting to
raise a claim that she was denied a reasonable accommodation. We find
that this accommodation issue was not raised in the complaint or during
the EEO hearing. We note that at the hearing, complainant specifically
testified that she was not raising a denial of accommodation claim.
Thus, we decline to address a claim for a denial of accommodation.
CONCLUSION
Therefore, the agency's final decision finding no discrimination is
AFFIRMED.
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
March 23, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2"In Louthen, the Commission has promulgated its policy regarding
the taking of telephonic testimony in the future by setting
forth explicit standards and obligations on its Administrative
Judges and the parties. Louthen requires either a finding
of exigent circumstances or a joint and voluntary request
by the parties with their informed consent. When assessing
prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by
considering the totality of the circumstances. In particular,
the Commission will consider factors such as whether there were
exigent circumstances, whether a party objected to the taking of
telephonic testimony, whether the credibility of any witnesses
testifying telephonically is at issue, and the importance of
the testimony given telephonically. Further, where telephonic
testimony was improperly taken, the Commission will scrutinize the
evidence of record to determine whether the error was harmless,
as is found in this case." Sotomayor v. Department of the Army,
EEOC Appeal No. 01A43440 (May 17, 2006).
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0120055116
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036