05A01062
09-26-2002
Yvette Long, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yvette Long v. United States Postal Service
05A01062
September 26, 2002
.
Yvette Long,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A01062
Appeal No. 01A02616
Agency No. 4-E-852-0001-99
DECISION ON REQUEST FOR RECONSIDERATION
On July 26, 2000, Yvette Long (complainant) timely requested the
Equal Employment Opportunity Commission (the Commission or EEOC) to
reconsider the decision in Yvette Long v. United States Postal Service,
EEOC Appeal No. 01A02616 (June 27, 2000). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices, or operations of the agency. Id. For the reasons set forth
herein, complainant's request is granted.
TIMELINESS OF PRIOR APPEAL
In the previous decision, the Commission dismissed complainant's appeal
as untimely. It found that complainant received the agency's decision on
January 8, 2000, but failed to appeal until February 16, 2000. Since the
postmark was illegible, and it was received more than five days after
the thirty-day time limit expired, the Commission considered the appeal
untimely. See 29 C.F.R. � 1614.604(a) (when the postmark is not legible,
an appeal is considered timely if it is received within five days of
the expiration of the applicable filing period).
On request for reconsideration, complainant supports her timeliness
argument with a �Receipt for Certified Mail� bearing the same certified
number as her appeal, postmarked February 4, 2000. This receipt clearly
demonstrates that complainant mailed her appeal within the applicable
time limit. As a result, the Commission grants complainant's request
for reconsideration, and reverses its dismissal of complainant's appeal.
The Commission will review the agency's January 4, 2000 decision finding
no discrimination below.
REVIEW OF AGENCY'S FINAL DECISION
Complainant worked as a Window Clerk at the agency's Northwest Station
in Phoenix, Arizona. Her duties entailed, in relevant part, standing or
walking for her entire shift, minus breaks and lunch (approximately 6 �
hours a day). In her formal complaint, complainant alleged violations
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. on
the bases of race (African-American), sex (female), and disability.<1>
She alleged harm from the agency's September 21, 1998 denial of her
light duty request, and its contention that no additional work was
available even though several Caucasian employees were being accommodated.
When complainant failed to respond to a notice informing her of her right
to request a hearing, the agency issued its final decision finding no
discrimination in her complaint.
The agency found that complainant was not a qualified individual with a
disability entitled to a reasonable accommodation. Its decision was based
on the results of a �Fitness For Duty Exam� (FFDE) finding complainant
�fully capable� of performing the duties of a Window Clerk. Even assuming
that complainant was a qualified individual with a disability, the
agency found that it could not accommodate the restrictions complainant
required, and did not subject her to disparate treatment. With regard to
disparate treatment, the agency noted that of the comparison employees
cited by complainant, one was working �light duty� pursuant to an
Office of Workers' Compensation Program (OWCP) rehabilitation job offer
approved by the Department of Labor, and the other two were not given
any accommodation beyond leave to attend to their medical conditions.<2>
BACKGROUND
On July 29, 1998, complainant first sought treatment at an urgent care
center for pain and swelling in her feet and legs. Medical personnel at
the center believed complainant suffered from �degenerative arthritis,�
ordered complainant to take two days off from work, and suggested she
pursue further treatment from her primary physician. On August 24,
1998, complainant's primary physician signed an OWCP Certification that
complainant suffered from arthritis since July 29, 1998, and required
four to six weeks of bed rest. In a separate �Certificate to Return to
Work,� he stated that complainant had been under his care since August
3, and could return August 25 without restrictions. In yet another
�Certificate to Return to Work,� dated September 17, 1998, the primary
physician stated that complainant had been under his care since August
24, and could return to work September 21, 1998, provided she engaged
in �no prolonged standing or walking, � hour or less� for no more than
3 hours a day. Complainant submitted these certificates with a request
for light duty, which the agency denied upon finding �no productive work
available� within complainant's restrictions.
On October 7, 1998, complainant was referred by her primary physician
to a specialist in arthritis treatment. Upon examining complainant,
conducting tests, and reviewing her x-rays, the specialist found
no sign of arthritis. He could not identify a cause for her pain,
and recommended she visit an orthopedic surgeon. Per the specialist's
recommendation, complainant visited an orthopedic surgeon on November 3,
1998. The surgeon found that complainant had pedis plantus, or flat feet.
He suggested that complainant's leg pain was �probably secondary to over
use and prolonged standing.� Although he did not recommend surgery,
the orthopedist suggested that complainant �modify [her] job activity�
and wear support hose to alleviate the pain.
In an October 22, 1998 fax signed by a nurse, complainant's restrictions
were listed as no prolonged standing of more than five to ten minutes.
It is unclear from the document whether the nurse examined complainant,
or is associated with any of the physicians complainant visited. However,
complainant's supervisor referred to this document when asking other
facilities whether they had work within complainant's restrictions.
Since complainant had not returned to work since July 29, 1998, and had
exhausted her leave, the agency referred complainant for a FFDE. The FFDE
was conducted on November 30, 1998, by a contract physician specializing
in �occupational medicine.� Concurring with the orthopedic surgeon's
diagnosis, the contract physician found that complainant had flat feet,
and would suffer �symptomatic� pain when she returned to work. However,
the contract physician found no medical reason to prohibit complainant
from performing Window Clerk duties without restriction.
On December 30, 1998, complainant's primary physician referred her to
a podiatrist. The podiatrist found that complainant had flat feet,
with �secondary plantar fasciitis and calcaneal valgus deformity.� He
built a �bio-mechanical support� for complainant to wear on her foot,
but made no further recommendations. By letter dated January 14,
1999, complainant's primary physician noted that until her condition
was identified, complainant was �restricted in [her] ability to stand
or walk for prolonged periods of time.�
In an internal January 20, 1999 e-mail, agency officials noted that they
were contacted by a prospective employer when complainant applied to
work as an aerobics instructor. Management suggested that complainant
be given an �independent medical exam� to determine whether she can
perform her duties as a Window Clerk. On June 23, 1999, a contract
orthopedist examined complainant for this independent exam. In his
report, the contract orthopedist diagnosed complainant with flat feet,
plantar fasciitis, �crepidation� in her knees, and a small bone spur
on her left foot. He recommended that the support fashioned by the
podiatrist be expanded to include a �metatarsal pad,� that complainant
be given a pad or mat to stand on at work, that she be allowed to sit
down �periodically for short periods,� that she not stand for more than
two hours continuously without a one hour break from standing, that she
wear special walking shoes, special support hose, and receive counseling
because �at least a portion� of her pain was a psychosomatic perception,
as opposed to actual pain. He also diagnosed her condition as temporary,
noting that with time, her fasciitis may clear.<3>
On July 27, 1999, complainant's primary physician wrote another letter
suggesting that complainant not stand for more than one hour at a time,
with an intervening 1 � hour off her feet. He noted that complainant
already was �on restriction standing at work,� but provided no information
concerning the reasons for his new restriction recommendations, or the
extent of complainant's restrictions at work.
ANALYSIS AND FINDINGS
A. DISABILITY CLAIM
In claims alleging disability discrimination, complainant first
must show that she is a �qualified individual with a disability�
entitled to protection under the Rehabilitation Act. See Murphy
v. United Parcel Service, Inc., 527 U.S. 516 (1999). An individual
with a disability is one who, inter alia, has a physical or mental
impairment substantially limiting one or more major life activities.
See 29 C.F.R. � 1630.2(g)(1)-(3). Major life activities include walking
and standing. See 29 C.F.R. � 1630.2(i); see also Thompson v. United
States Postal Service, EEOC Appeal No. 01971189 (August 31, 2000).
Relevant considerations as to whether an individual is substantially
limited in a major life activity include the nature and severity of
the impairment, its duration or expected duration, and its permanent or
long term impact. 29 C.F.R. � 1630.2(j)(2)(i)-(iii). The Commission
also must consider any mitigating measures �both positive and negative
. . . when judging whether [complainant] is �substantially limited.'�
Sutton v. United Airlines, 527 U.S. 471, 482 (1999).
Determinations regarding whether a complainant is an individual with a
disability must be made on a case-by-case basis. See Bragdon v. Abbott,
524 U.S. 624, 641-642 (1998). Complainant cannot be considered an
individual with a disability per-se, simply because she has been
diagnosed with a certain condition. See Sutton v. United Airlines,
527 U.S. 471, 483 (1999); Albertsons, Inc., v. Kirkinburg, 527 U.S. 555,
565-566 (1999); Murphy v. United Parcel Service, 527 U.S. 516, 521-523
(1999). An individualized assessment �is particularly necessary when
the impairment is one whose symptoms vary widely from person to person.�
Toyota Motor Mfg., Ky, Inc., v. Williams, 122 S. Ct. 681, 692 (2002).
Complainant must offer evidence to show the substantial nature of her
impairment. Id. at 692 (citations omitted).
Complainant was initially diagnosed with arthritis, but almost all of
the subsequent medical documentation from several physicians who examined
complainant indicates that she has �flat feet.� The Commission concludes
that complainant has shown her condition constitutes an impairment within
the meaning of the Rehabilitation Act.
The documentation concerning her limitations, on the other hand,
is inconclusive on the issue of whether she is substantially limited
in a major life activity. The most restrictive limitation placed on
complainant by a medical professional, that she stand or walk for no
more than five to ten minutes, was not issued by complainant's primary
physician, nor any of the specialists or agency-contracted physicians
who examined complainant. The slip was signed by a nurse, and her
relationship to complainant or any of the medical professionals who
actually examined complainant is not clear. The recommendation also is
significantly more restrictive than any of the other limitation suggested
by the examining physicians, including those from complainant's primary
physician. The Commission finds the restrictions imposed by the examining
physicians more credible than the October 22, 1998 fax from the nurse.
Of the remaining limitations, complainant's primary physician issued the
most restrictive � forbidding complainant from standing or walking for
more than � hour at a time, for no more than three hours a day. We note,
however, that the record contained a wide array of often contradictory
recommendations from the primary physician about the nature and extent
of the impairment, the amount of limitations to standing or walking, if
any, and the expected duration of the impairment. Further, complainant
provided no explanation for the primary physician's changing list of
limitations.
The reports of the specialists and contract physicians are no more
illuminating - several recommended no restrictions at all, others
suggested that she wear support hose or a bio-mechanical support,
or referred to modified work activity or periodic short breaks.
Given these inconsistent recommendations and contradictory evidence, the
Commission finds that complainant failed to meet her burden of proving
she was substantially limited in a major life activity.<4> Therefore,
complainant is not entitled to a reasonable accommodation under the
Rehabilitation Act, and the agency's final decision was proper.
B. RACE AND SEX DISPARATE TREATMENT CLAIM
In claims of disparate treatment discrimination, complainant first
must establish a prima facie claim of discrimination on protected
bases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Once complainant has established a prima facie case of discrimination, the
burden of production shifts, and the agency must articulate a legitimate,
nondiscriminatory reason for its actions. See Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The burden then returns
to complainant to show that the agency's stated reason was a pretext
for discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502,
511 (1993). The ultimate burden that the agency's actions constitute
discrimination, by preponderance of the evidence, remains on complainant
at all times. See Burdine, supra at 256.
The Commission also affirms the agency's findings with regard to race
and sex. Complainant failed to prove a prima facie case of race or
sex discrimination, because she has not shown that other, similarly
situated employees received preferential treatment. The agency provided
evidence that the employees named by complainant were not similarly
situated to complainant's circumstances, and complainant has failed
to refute this evidence. Further, the agency articulated a legitimate
nondiscriminatory reason for its actions: it had no work available within
complainant's restrictions. Complainant has failed to show that the
agency's articulated reason was a pretext for discrimination. Therefore,
the agency's finding of no race or sex discrimination is affirmed.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to grant the complainant's request.
The decision of the Commission in Appeal No. 01A02616 is reversed.
Upon review of the agency's final decision, the agency's findings of no
discrimination are affirmed. Since the Commission has not previously
addressed the agency's final decision, the parties may file a request
for reconsideration as provided herein.
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
September 26, 2002
__________________
Date
1The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.
2One of these employees was given leave to attend lung cancer treatment,
and subsequently died. The other was given leave to have foot surgery,
and returned to full duty without restrictions after the surgery.
3The contract orthopedist notes that complainant returned to work in April
1999, and has only missed two days since then. However, complainant's
position, duties, hours, and restrictions since she returned to work
are unclear from the record.
4Complainant's application for an aerobics instructor position, which
prompted the June 23, 1999 medical examination, further undermines her
claim that she is substantially limited as the result of her flat feet.