01a40710
07-28-2005
Brenda King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Brenda King v. United States Postal Service
01A40710
July 28, 2005
.
Brenda King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A40710
Agency No. 4J-606-0163-02
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Distribution Window Clerk at an agency facility in Chicago, Illinois.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 20, 2002, alleging that she was discriminated
against on the bases of disability, age (born April 29, 1960), and in
reprisal for prior EEO activity arising under the Rehabilitation Act
when from May 18, 2002 to June 26, 2002 and on July 6, 2002, complainant
was told to go home because there was no work for her to perform on
those days.
At the conclusion of the investigation, 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
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency determined that complainant failed to
establish prima facie cases of discrimination and accordingly found
no discrimination. On appeal, complainant argues that the agency erred
when it found no discrimination and restates arguments previously raised
during the investigation.
Complainant claimed that she suffered an on-the-job injury in April
2001 that left her with neck pain and shoulder strain on the right side
of her body. Her physician diagnosed her as having right shoulder
myositis/myofascitis and neck strain. The record reveals that the
agency placed complainant in a limited duty assignment from April 27,
2001 through July 5, 2001, which restricted her from lifting, pushing,
or pulling. The record further reveals that on July 20, 2001, the Office
of Workers' Compensation Programs denied complainant's traumatic injury
claim on the basis that there was insufficient evidence to establish
that her condition was caused by a work-related injury. From April 9,
2002 through May 17, 2002, complainant was assigned to work at the Ontario
Street Station, where she worked postage, box mail, and window services.
In an investigative affidavit, complainant contended that she worked
within her medical restrictions while at the Ontario Street Station,
but when she returned to work at the Fort Dearborn Station on May 18,
2002, she was asked to perform duties that were outside her restrictions.
Specifically, she stated that the Station Superintendent would approach
her with an automated postal center (apc) �full of tubs with flats� and
instruct her to push the apc around the workroom floor and drop the tubs
to the carriers while they were in their cases. Complainant objected that
this request was contrary to her restrictions because a tub can weight
from 25 to 35 pounds with first class mail and up to 50 pounds with
second and third class mail, while an apc full of tubs can weight from
500 to 1,400 pounds. �These job assignments required heavy lifting,
pushing and pulling on a daily basis. I am no longer able to lift,
push or pull anything that is heavy, nor can I handle equipment filled to
capacity�due to the injuries sustained on-the-job (right wrist tendonitis,
right arm and shoulder strain),� complainant stated.
She also stated that on June 26, 2002, she was asked to push heavy apc
equipment, which was outside her restrictions. Complainant stated that
when she refused to push the equipment, the Manager of Customer Services
told her to fill out a request for leave form (Form 3971) and go home.
Complainant also maintained that as she left work, the Manager told
her to work the remainder of the work day in the Business Reply Mail
Unit and return to work the next day. Complainant alleged that the
Manager told her she must submit documentation from her physician
so that she could determine what work was available for complainant
within her restrictions. On June 29, 2002, complainant submitted
documentation from her physician to the agency but was out of work from
June 28, 2002 through July 5, 2002, pursuant to her physician's orders.
Complainant maintains that on July 6, 2002, a supervisor instructed her
to go home because her supervisor was not there to approve her return
to work, but before she could clock out, told her to work in finance.
Complainant maintained that she returned to work with the documentation
on July 8, 2002, but the Manager denied her request for accommodation,
forcing her to take leave until July 13, 2002. In the documentation,
complainant's physician stated that complainant was able to return to
duty beginning on July 6, 2002, but was restricted from pushing, pulling,
or lifting more than 10 pounds. Along with the documentation, complainant
submitted a letter dated July 5, 2002, wherein she requested light duty<0>
within her restrictions. Complainant alleged that later on July 8, 2002,
the Manager of Customer Services called her at home and instructed her
not to return to work because she did not have work for complainant to do
at Fort Dearborn at that time. Complainant returned to work on July 13,
2002, and was instructed to work finance, lock box mail, and the window.
In response, the Manager of Customer Services stated that she was
not aware of complainant's restrictions until July 6, 2002, when
complainant presented a return to duty certification from a physician.
She stated that complainant was allowed to work 9.47 hours on July 6,
2002, but because her medical documentation stated that she could only
use her left hand, there was limited work to assign her. �Light duty
assignments require that the employee perform productive work for the
organization in support of our goals and objectives. [Complainant] simply
could not perform productive work,� she stated. She further stated that
complainant was instructed to provide medical documentation and request
light duty in writing, but she refused to do so during the relevant time
period. �It was [complainant's] attitude towards the regulations and
my enforcement of these regulations that caused her to take off and not
return to her job,� she stated. She stated that if an employee failed to
request light duty in writing, they have effectively chosen to use their
sick leave until they can fully perform their assigned job. The Manager
further stated that she was very skeptical that complainant's condition
was related to a job-related injury because her workers' compensation
claim had been denied by the Office of Workers' Compensation Programs.
The Supervisor of Customer Services stated that because complainant's
restrictions only allowed her to use her left hand, there was not a
lot of work for her do during the relevant time period. The Supervisor
stated that the collective bargaining agreement required complainant to
request light duty in writing, but she refused to do so. Both management
officials denied having any knowledge that complainant engaged in previous
EEO activities.
As a preliminary matter, we note that we review the decision on an
appeal from a final agency decision de novo. 29 C.F.R. � 1614.405(a).
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence warrants
a modification of the agency's ruling. See 29 C.F.R. � 1614.405(a).
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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 consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Once the agency has met its burden, the complainant
bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted on the basis of a
prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant alleged that the agency assigned her work outside of
her restrictions on several days. The agency responded that when
complainant verbally requested light duty, it informed her that she
would have to make the request in writing in accordance with agency
regulations, but she failed to do so. The agency maintained that until
complainant submitted the required documentation, she had the option to
perform the assigned tasks or take leave because there was not any work
available for her to do on the relevant days within her restrictions.
Upon review of the matter, we first find that the agency's response
is a legitimate, non-discriminatory reason for the alleged actions.
Article 13 � 2.A of the collective bargaining agreement provides that
employees should submit a written request for light duty that is supported
by medical documentation from a physician. Complainant does not rebut
the agency's claim that she failed to submit a written request for
light duty until after July 8, 2002. Moreover, a review of the record
reveals that twelve comparative employees cited by complainant were
not similarly situated to her. Specifically, seven of the employees
were already limited/light or rehabilitation duty employees during the
relevant time period, another was a part-time clerk who was pregnant
but worked her regular assignment, one was a casual employee, one did
not work at Fort Dearborn during the relevant time period, and one was
a special delivery messenger who did not have any work restrictions.
There is no record the remaining employee had any restrictions or sought
light duty. In contrast, complainant had verbally requested light duty
during the relevant time period, but did not have a light duty assignment.
We conclude that complainant failed to provide any persuasive evidence
that the agency's legitimate, non-discriminatory reason for its actions
was pretext for unlawful discrimination or reprisal.
Harassment
Under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on her membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Complainant alleged that she was subjected to harassment when she
was constantly asked to perform duties outside her work restrictions
from May 18, 2002 to June 26, 2002 and on July 6, 2002. However, the
agency provided legitimate, non-discriminatory reasons for its actions
as explained above that were not persuasively rebutted by complainant
as pretext for unlawful discrimination. Consequently, we find that the
agency properly found no harassment.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and
(p). A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
In this case, we assume arguendo that complainant is an individual with
a disability under the Rehabilitation Act. Complainant contends that the
agency did not accommodate her disability when it failed to place her on
light or limited duty and assigned her tasks outside her restrictions. The
agency maintains that there was no work for complainant to do within
her restrictions on the relevant dates, and the only recourse was for
complainant to take leave on those days. Complainant generally asserts
that she was able to perform several duties within her restrictions
including sorting mail, weighing mail, labeling, working certified mail,
answering the telephone, retrieving packages, and relaying messages.
However, complainant failed to prove that these or other specific tasks
were available for her to do in her job on the particular dates at issue.
Moreover, the Commission finds that complainant could not perform
essential functions of the Distribution Window clerk position, which
included significant lifting that violated complainant's lifting
restrictions. We further find that complainant was requesting
reassignment as a form of accommodation when she objected to doing
specific aspects of her position and asked for a light duty assignment.<0>
However, we find that complainant has not presented sufficient evidence
to support a finding that more likely than not, there was a vacant,
funded position for which she was qualified and to which she could
have been reassigned during the relevant time period. Accordingly, we
conclude that complainant has not established that she is a qualified
individual with a disability under the Rehabilitation Act.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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
_July 28, 2005_________________
Date
0 1The Commission recognizes that the term "light duty" has a variety
meanings in the employment setting. "Generally, �light duty' refers
to temporary or permanent work that is physically or mentally less
demanding than normal job duties." EEOC Enforcement Guidance on Workers'
Compensation and the ADA, Number 915.002, Light Duty (September 3, 1996)
(includes general discussion on the meaning of "light duty"). In the
context of the Workers' Compensation and the Americans with Disabilities
Act Guidance, the Commission defines the term "light duty" as referring
"only to particular positions created specifically for the purpose of
providing work for employees who are unable to perform some or all of
their normal duties." Id.
0 2We note that an employer is not required to create a light duty
assignment as a form of reasonable accommodation. EEOC Enforcement
Guidance on Workers' Compensation and the ADA, Number 915.002, Light Duty
(September 3, 1996) at Question 27. The agency is only obligated to
provide some form of reasonable accommodation for an individual with
a disability, which may include reassignment. We further note that
under the Rehabilitation Act, there is no requirement that a request
for reasonable accommodation be in writing.