01A03449
09-18-2002
Susan Michaud, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Susan Michaud v. United States Postal Service
01A03449
September 18, 2002
.
Susan Michaud,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03449
Agency No. 4A-070-0147-99
DECISION
The complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. The complainant
alleged that she was discriminated against on the bases of disability
(spondylolithesis) and retaliation (prior EEO activity) when the agency's
medical unit deemed her to be a �moderate risk,� thereby delaying her
hiring as a Data Conversion Operator (DCO), PS-4, from July 6, 1998
through October 24, 1998.
The record reveals that during the relevant time, the complainant was
not a federal government employee. On June 15, 1998, the complainant
applied for a DCO, PS-4, position at the agency's Remote Encoding Center
in Kearny, New Jersey. The complainant was scheduled for a physical
examination on June 29, 1998, wherein she was deemed a �moderate risk�
and subsequently offered employment on October 22, 1998. The complainant
accepted the position.<1> Believing she was a victim of discrimination,
the complainant sought EEO counseling in July 1998 and subsequently
filed a formal complaint on February 10, 1999. At the conclusion of the
investigation, the complainant was informed of her right to request a
hearing before an EEOC Administrative Judge, or alternatively, to receive
a final decision by the agency. When the complainant failed to respond
within the time period specified in 29 C.F.R. � 1614, the agency issued
a final decision.
In its FAD, the agency concluded that the complainant had not received
an adverse action because she was hired as a DCO on October 24, 1998.
The agency also found that the delay in her hiring was to determine
whether she could perform the essential functions of the position without
undue risk to her safety and health. Accordingly, the agency closed
the complaint with a finding of no discrimination.
On appeal, the complainant contends that the delay in her hiring caused
her �undue hardships� which resulted in her resignation. Specifically,
the complainant contends that she was medically qualified for the DCO
position on July 2, 1998, as evidenced by the agency's Medical Assessment
Determination, and should therefore have been allowed to attend the July
6, 1998 orientation. The July 2, 1998 Medical Assessment Determination
showed that the complainant was deemed a �moderate risk� as she was to do
no lifting over 30 pounds repeatedly. The complainant states that the
job description entailed no lifting over fifteen pounds and that those
individuals who attended the July 6, 1998 orientation were advised that
the only lifting required in this job was a pencil. The complainant
requests that her case be allowed to proceed.
In its response to the appeal, the agency contends that it has articulated
a legitimate reason for its action in not hiring the complainant
until October 24, 1998, rather than on July 6, 1998. Specifically,
the agency contends that the complainant was advised in her June 16,
1998 interview that she would have to be medically cleared by July 3,
1998, in order to attend the July 6, 1998 orientation. The record
shows that the complainant faxed her physician's assessment to the
medical unit on July 1, 1998, in which her physician stated that she
could not lift over 30 pounds on a repetitive basis. Accordingly, the
medical unit deemed the complainant a moderate risk for injury and not
qualified for the DCO position based on the functional job requirements.
The record contains an agency form signed by the complainant on June 29,
1998, which indicates that, among other requirements, the DCO position
required moderate lifting from 15 to 44 pounds.
The agency further contends that when the Supervisor, Remote Encoding
Center & Human Resources, (SO) learned of the complainant's risk
assessment, she attempted to have the complainant medically cleared
by providing the medical unit with updated functional requirements.
The record shows that on September 29, 1998, a new Medical Assessment
Determination deemed the complainant �no risk� for the Data Conversion
Operator position. The agency contends that even if the medical unit
had accepted the new functional requirements from the SO on July 6,
1998, the complainant as well as eight others did not meet the July 3
cut-off for the July 6 orientation. Additionally, the agency contends
that the next scheduled orientation was scheduled for October 3, 1998,
but when the complainant was contacted she claimed she could not attend
the October 3 orientation as she had a prior commitment. Thereafter,
on October 24, 1998, the complainant reported to the next scheduled
orientation. Finally, the agency contends that the complainant failed
to show that its actions were a pretext for discrimination and requests
that the Commission affirm its FAD.
In general, claims alleging disparate treatment under the Rehabilitation
Act are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792(1973).
A complainant 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 reason 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). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248(1981).
After the agency has offered the reason for its actions, the burden
returns to the complainant to demonstrate, by a preponderance of the
evidence, that the agency's reason was pretextual, that is, it was not
the true reason or the action was influenced by legally impermissible
criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks,
509 U.S. 502(1993).
The complainant may establish a prima facie case of discrimination
by showing that she is a member of a protected group and that she was
treated less favorably than other similarly situated employees outside
her protected group. See Potter v. Goodwill Industries of Cleveland,
518 F.2d 864, 865(6th Cir. 1975). The complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference of
discrimination can be drawn. Furnco, 438 U.S. at 576.
The 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 the
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28. 1990). In this
case, even assuming, arguendo, that the complainant is a person with
a disability and has established a prima facie case, we find that she
nevertheless has failed to prove discrimination.
Here, the agency has articulated a legitimate, nondiscriminatory reason
for its delay in hiring the complainant. It is undisputed that the
complainant had to be medically cleared for the position by July 3,
1998, in order to attend the July 6, 1998 orientation. It is also
undisputed that the complainant faxed her personal physician's report
to the agency on July 1, 1998. However, the record contains a sworn
affidavit from the medical unit's physician (MUP), stating that based
on the functional requirements for the job description, the complainant
was a �moderate risk.� The MUP further averred that when the personnel
department sent her a set of revised functional requirements for the job
description she determined the complainant to be �no risk� and therefore
qualified for the job.
In the SO's sworn affidavit, she avers that when she learned that the
complainant was not medically cleared, she contacted the medical unit
and was informed that it had to use the functional requirements provided
by headquarters and could not deviate from them. Subsequently, the SO
was able to provide the medical unit with revised functional requirements
for the DCO position, which allowed the medical unit to determine that
the complainant was �no risk� and medically cleared for the DCO position.
It is undisputed that the agency offered the complainant an orientation
class on October 3, 1998, and that the complainant was unable to begin
on that date. The complainant subsequently accepted an offer to attend
the October 24, 1998 orientation class and begin her employment with
the agency.
The record shows that the agency was following its usual procedures
and policy in medically clearing individuals on an individual basis for
each position. The complainant has offered no evidence to show that any
of the actions taken by the agency were a pretext for discrimination.
Moreover, the complainant herself was responsible for some of the delay
in her start date. We are not convinced that the agency's delay in
hiring the complainant was due to discrimination on any basis.<2>
Therefore, after a careful review of the record, including the
complainant's contentions on appeal, the agency's response, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 18, 2002
__________________
Date
1 The complainant subsequently resigned from the agency effective April
1, 1999.
2 We note that in its FAD, the agency failed to address the complainant's
claims based on retaliation. However, we find that no evidence exists
to show that the actions taken by the agency were discriminative on
any basis.