01986666
10-05-2001
Sherry Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sherry Johnson v. United States Postal Service
01986666
10-05-01
.
Sherry Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986666
Agency No. 1-H-328-1047-96
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et
seq. (1994 & Supp. IV 1999), and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. 633a (1994 & Supp. IV 1999). The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that she
was discriminated against on the bases of her disability (severe chemical
sensitivity and arm impairment with resultant lifting restriction) and
age (date of birth December 23, 1935) when: 1) on August 2, 1996, she
was ordered to work on the workroom floor in violation of her medical
restrictions, and 2) on August 9, 1996, she was ordered to work on the
workroom floor or the dock in violation of her medical restrictions.
The record reveals that during the relevant time, complainant was
employed as a distribution clerk -- modified, at the agency's Orlando
Processing and Distribution Center facility. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on October 16, 1996. At the conclusion of
the investigation, complainant was informed of her right to request
a hearing before an Equal Employment Opportunity Commission (EEOC)
Administrative Judge or alternatively, to receive a final decision by the
agency. Complainant first asked for, and later withdrew her request for,
a hearing before an Administrative Judge. Thereafter, the agency issued
a final decision.
In its FAD, the agency concluded that complainant failed to show that
she was discriminated against because of her age or disability.
Complainant submitted no argument on appeal. The agency requests that
we affirm its FAD.
BACKGROUND
Complainant asserted that in the 1990's, she was exposed to chemicals at
the agency which induced in her a severe chemical sensitivity reaction.
Complainant asserted that she was restricted from exposure to chemicals
and could not tolerate many products with chemical contents, heavy dust,
and exhaust fumes. Complainant further asserted that she was unable
to lift more than 20 lbs., apparently because of an impairment to
both arms. On August 2 and 9, 1996, complainant's supervisor ordered
her to work either on the workroom floor or loading dock, or to leave
work. Complainant apparently absented herself from work on sick leave.
Complainant's supervisor attested that complainant was assigned to
work in the old control center because the air quality was supposed
to be dust free. However, air quality testing revealed that the old
control center was serviced by the same air handlers as the workroom
floor, and the air on the workroom floor was the same quality as in the
control center. Consequently, in consultation with the agency's injury
compensation specialist and the plant manager, complainant was ordered
to work on the workroom floor. Complainant was also ordered to work on
the loading dock because there she was exposed to fresh air.
ANALYSIS
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing that
age was a determinative factor); and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission agrees with the agency that complainant failed
to establish a prima facie case of age or disability discrimination.
While it is not necessary for complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case, O'Connor v. Consolidated Coin
Caters Corp., 517 U.S. 308, 312-13 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n.4 (September 18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157,
159 (7th Cir. 1996), some evidence must exist from which an inference
of discrimination can reasonably be drawn. Here, complainant failed to
create any inference that age animus motivated the agency's actions, nor
did she adduce any medical evidence of her disabilities.<1> Complainant
provided no medical documentation of her impairments, and her request
that the investigator produce this information
from the agency's files or from the Department of Labor's Office of
Worker's Compensation Programs is inadequate for complainant to sustain
her burden.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant failed to challenge her supervisor's statements
about the air quality on the workroom floor or the loading dock.
Therefore, after a careful review of the record 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
_____10-05-01_____________
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 Complainant must establish that she is a �qualified individual with
disability� within the meaning of the Rehabilitation Act. An "individual
with a disability" is one who: (1) has a physical or mental impairment
that substantially limits one or more major life activities; (2)
has a record of such impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g).