0120102798
09-24-2010
Virginia Franklin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Virginia Franklin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120102798
Agency No. 1C-151-0024-09
DECISION
On June 14, 2010, Complainant filed an appeal from the Agency's May 13, 2010, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that she was subjected to discrimination and harassment on the basis of disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Casual Mail Handler, EAS-07, at the Agency's Pittsburgh, Pennsylvania Processing and Distribution Center. Report of Investigation (ROI), at Ex. 1. Complainant's first-level supervisor (S1) was the Acting Supervisor, Distribution Operations. ROI, Aff. C, at 1-2. Complainant's second-level supervisor (S2) was the Acting Manager, Distribution Operations. ROI, Aff. B, at 1-2. The S2 was assigned into Complainant's operation (010) on April 7, 2009. Id. at 4.
According to a PS Form 1769 Accident Report completed by another supervisor (OS) on March 30, 2009, Complainant suffered a work-related injury on March 26, 2009. ROI, at Ex. 3. In the narrative description portion of the report, OS wrote that S1 informed him on March 30, 2009, that Complainant wanted to report an accident that happened on March 26, 2009; Complainant claimed that, while working in the 010 breakdown area, she lifted a HOD1 and felt a pain in her back. Id. OS noted that Complainant did not report the incident to any supervisor at the time of the accident but called off work2 on March 27 and 28, 2009. Id.
Complainant submitted two Work Related Injury Forms to the Agency at the time of events giving rise to this complaint. ROI, at Ex. 5, 6. A form dated March 31, 2009, indicated that Complainant should perform modified work with the following restrictions until April 4, 2009: (1) no work requiring depth perception, driving, climbing, or operating machinery; (2) no repetitive stooping, bending, or twisting; (3) no lifting greater than eight pounds; and (4) sitting work only. ROI, at Ex. 5. A form dated April 5, 2009, indicated that Complainant should perform modified work with the following restrictions: (1) no repetitive stooping, bending, or twisting; (2) no lifting greater than ten pounds; and (3) sitting work only. ROI, at Ex. 6. The form did not indicate how long Complainant's restrictions would be in effect; the "modified work until" line was left blank. Id.
In a Termination of Casual Appointment letter dated May 22, 2009,3 S2 informed Complainant that, effective on May 22, 2009, her Casual Mail Handler appointment was terminated "due to [her] failure to be regular in attendance." ROI, at Ex. 8. Complainant worked from March 30, 2009 through April 9, 2009. ROI, at Ex. 3. Complainant was off work from April 10, 2009, through May 10, 2009. Id. Complainant worked on May 11, 2009. Id. Complainant was off of work from May 12, 2009, until her termination. Id.
Complainant alleged that she had medical certificates for the days she was absent from work. EEO Counselor's Report, at 13. The record includes three Certificates to Return to Work or School. ROI, at 69, 70, 75. A certificate dated April 23, 2009, indicated that Complainant was under a physician's care for back pain from April 23, 2009, "[times] 2 weeks." Id. at 75. The "will be able to return to work/school on" line was left blank. Id. A certificate dated May 11, 2009, indicated that Complainant was under a physician's care for severe lumbago low back pain from April 13, 2009, and April 23, 2009. Id. at 70. The "will be able to return to work/school on" line listed May 11, 2009. Id. A certificate dated May 13, 2009, indicated that Complainant was under a physician's care for back pain from May 13, 2009, "indefinitely." Id. at 69. The "will be able to return to work/school on" line was left blank. Id. None of the certificates mentioned any restrictions. Id. at 69, 70, 75. The record is unclear as to whether Complainant submitted these certificates to the Agency at the time of events giving rise to this complaint.4
On September 10, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the basis of disability (back) following a work-related injury on March 26, 2009, when:
1. S2 and S1 worked her outside of her medical restrictions;
2. S2 threatened her with termination; and
3. on May 22, 2009, S2 terminated her from her Casual Mail Handler position.
Complainant alleged that she was harassed by S2 because of the amount of work to which she was limited. Formal Complaint, at 1. In addition, Complainant alleged that S2 and S1 made her do excessive work that she was not supposed to do. Id. Further, Complainant alleged that she was told by S2, as of May 10, 2009, that if she was not able to perform her job without restrictions, she would be terminated. Id. at 3. Finally, Complainant alleged that she tried to do all the work without restriction on May 11, 2009, and was not able due to excessive pain. Id.
On December 21, 2009, the Agency issued a final decision dismissing Complainant's complaint for failing to provide relevant information pursuant to 29 C.F.R. � 1614.107(a)(7). Agency's December 21, 2009 Final Decision, at 2. The Agency found that Complainant failed to cooperate when she did not return her affidavit5 and that there was insufficient information in the record to adjudicate her complaint. Id. On February 5, 2010, Complainant appealed the Agency's dismissal of her complaint to the Commission. On February 26, 2010, the Agency rescinded its previous decision and notified Complainant of its intent to resume processing of her complaint. On March 25, 2010, the Commission informed Complainant that her appeal was being closed because the Agency had rescinded its final decision.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Agency's May 13, 2010, Final Decision, at 19.
Specifically, the Agency found that Complainant failed to establish a prima facie case of disability discrimination or harassment. Id. at 11-15. Next, the Agency assumed, arguendo, that Complainant established a prima facie case of disability discrimination and found that management articulated legitimate, nondiscriminatory reasons for its actions. Id. at 16-17. S2 provided the following explanations: (1) at no time was Complainant worked outside of her restrictions; (2) at no time did S2 tell Complainant that she would be terminated unless she was able to perform all the duties of her position; (3) Complainant worked light duty assignments through April 9, 2010, at which time she was advised of the need to provide additional medical documentation because the Work Related Injury Form dated April 5, 2010, did not provide an expected date that the light duty would be ending; (4) Complainant never submitted the requested documentation, did not work from April 10, 2009, through May 10, 2009, and returned to work on May 11, 2009, without any restrictions; and (5) Complainant was absent from work from May 12, 2009, through her termination, which was based on her failure to be regular in attendance. Id. Finally, the Agency found that Complainant failed to show that the Agency's reasons were a pretext for discrimination. Id. at 17-19. The Agency found that Complainant did not show that she was worked outside of her medical restrictions or was threatened with termination as alleged, nor did the evidence refute management's contentions that she was terminated from her position due to unsatisfactory attendance. Id. at 18.
CONTENTIONS ON APPEAL
On appeal, Complainant provides a copy of the Certificate to Return to Work or School dated May 13, 2009 "giving [her] indefinitely off from work." Complainant's Appeal Brief. In addition to asserting that she was excused from work, Complainant argues that, on the days that she was absent from work, she "called the department 010 [and] the front desk to report that [she] would not be coming to work on the following days." Id. In response, the Agency requests that we affirm its final decision. Agency's Appeal Brief.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Reasonable Accommodation
Under the Commission's regulations, federal agencies are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. For purposes of analysis only, we assume, arguendo, without so finding, that Complainant is an individual with a disability entitled to coverage under the Rehabilitation Act.
Based on the record before us, we find that Complainant has not established that the Agency failed to reasonably accommodate her by working her outside of her medical restrictions. Although Complainant did not specify exactly how or when she was worked outside of her restrictions, we assume that this allegedly occurred on April 7-9, 2009, or on May 11, 2009, because S2 was not assigned into the 010 operation until April 7, 2009, and Complainant was absent from work on the other days prior to her termination. ROI, at Aff. B, at 3; Ex. 7. S2 attested that Complainant had provided documentation indicating she needed temporary light duty until April 4, 2009. ROI, Aff. B, at 4. In addition, S2 attested that she continued to accommodate Complainant on light duty,6 after she arrived at the 010 operation on April 7, 2009, because Complainant claimed she had an injury. Id. However, S2 attested that Complainant was informed that she needed to bring additional medical documentation to support her continuing on light duty because the documentation she supplied on April 5, 2009, did not provide an expected end date for the light-duty request. Id. Further, the S2 attested that Complainant never submitted additional documentation to support her light-duty request and did not return to work until May 11, 2009, when she did so without restrictions. Id.
Although Complainant stated in her Information for Pre-Complaint Counseling that she "was on light duty when [she] was at work," we find that there is no evidence in the record that Complainant had valid restrictions after April 4, 2009. EEO Counselor's Report, at 13. According to the Work Related Injury Form dated March 31, 2009, Complainant's restrictions expired on April 4, 2009. ROI, at Ex. 5. Although S2 attested that she informed Complainant that the Work Related Injury Form dated April 5, 2009, was insufficient documentation because it did not indicate an expiration date for the restrictions, there is no evidence in the record that Complainant submitted any additional documentation regarding her restrictions. ROI, at Aff. B, at 4; Ex. 6. In addition, aside from Complainant's bare assertions, there is no evidence in the record that Complainant was worked outside of her restrictions.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, without so finding, that Complainant established a prima facie case of disability discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for her termination. The S2 attested that Complainant was issued a notice of termination due to her failure to be regular in attendance. ROI, Aff. B, at 7. S2 explained that Complainant did not work from April 10, 2009, through May 10, 2009, returned to full duty and worked on May 11, 2009, and never returned to work after May 11, 2009. Id. In addition, S2 attested that Complainant was not given any prior formal disciplinary action, but received informal discussions about her poor attendance prior to being issued the notice of termination. Id.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons are a pretext for discrimination. In an attempt to show pretext, Complainant argues that she had medical documentation "giving [her] indefinitely off from work" and cites the Certificate to Return to Work or School dated May 13, 2009. Complainant's Appeal Brief. In addition, Complainant argues that, on the days that she was absent from work, she "called the department 010 [and] the front desk to report that [she] would not be coming to work on the following days." Id.
Based on the record before us, we find that Complainant has not demonstrated by a preponderance of the evidence that the Agency's reasons are a pretext for discrimination. Complainant does not deny that she has been absent from work on numerous occasions, but attempts to explain her absences by stating that "days [she] was off [she] had doctor certificates." EEO Counselor's Report, at 13. Specifically, Complainant references the Certificate to Return to Work or School dated May 13, 2009, and indicating that she was under a physician's care for back pain from May 13, 2009, "indefinitely." Complainant's Appeal Brief; ROI, at 69. However, there is no evidence in the record that Complainant actually submitted the May 13, 2009, certificate to the Agency. In addition, we find that there is no evidence in the record to support Complainant's assertion on appeal that she called the Agency to inform management of her absences.
Harassment
Complainant alleged that she was "being harassed by [S2] because of the amount of work that [she] was limited to" and that she was "told by [S2] as of 5/10/09 that if [she] wasn't able to fulfill the total job without restrictions [she] will be terminated. Formal Complaint, at 1, 3. Complainant alleged that she was "in fear of losing [her] job." Id. at 1.
To establish a claim of harassment based on race, sex, color, disability, age, or reprisal, complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant must also show that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Based on the record before us, we find that the evidence in the record does not establish that the events occurred as alleged. While Complainant alleged that S2 harassed her and threatened her with termination, there is no corroborating evidence of either event. S2 denied speaking to Complainant about the amount of work she could perform and denied threatening to terminate her for being unable to perform all the duties of the position. ROI, Aff. B, at 2. In addition, S1 attested that she had never heard S2 make any such comments or threats to Complainant. ROI, Aff. C, at 2. Finally, we note that Complainant was absent from work on May 10, 2009. ROI, at Ex. 7. Accordingly, Complainant we find that has not established her claim of harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 24, 2010
Date
1 This term is not defined in the record.
2 As a Casual employee, Complainant was ineligible for leave. ROI, at Ex. 1.
3 The Agency processed Complainant's termination on May 20, 2009. ROI, at Ex. 1.
4 Complainant submitted these certificates to the Commission on February 5, 2010, in support of her appeal of the Agency's December 21, 2009, final decision dismissing her complaint. ROI, at 63-75. The certificates were only in the "Appellant Activity" section of the ROI and were not in the "Exhibits" section. Id. There was no mention of any such certificates by S2 or S1, although they attested that Complainant was returned to full duty on May 11, 2009. ROI, Aff. B, at 3-4; Aff. C, at 3-4. When asked by the EEO Investigator to provide the medical documentation clearing Complainant for full duty, S1 responded that the documentation could not be located. ROI, at 208.
5 Complainant did not provide an affidavit for the record. ROI, at Aff. A; ROI, at 22. We rely on Complainant's limited written documents in the record, primarily her Formal Complaint and Information for Pre-Complaint Counseling. When Complainant does not provide an affidavit or requested information, any deficiency in the record preventing her from meeting her burden of proof is not attributable to the Agency's failure to conduct a proper investigation. Scura v. U.S. Postal Serv., EEOC Appeal No. 01965021 (Oct. 8, 1996).
6 S2 attested that Complainant worked light-duty assignments performing various sedentary duties within her restrictions, such as sorting mail. ROI, at Aff. B, at 3. In addition, S2 attested that no light-duty form was filled out as this was to be a very temporary situation according to the Work Related Injury Form dated March 31, 2009. Id. at 4. Further, S2 attested that Complainant was verbally given light-duty assignments for a one week period. Id.
??
??
??
??
2
0120102798
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102798