0120093888
05-16-2013
Colleen McReynolds, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Colleen McReynolds,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal Nos. 0120093888
0120102478
Agency Nos. 4K-230-0074-09
4K-230-0197-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 18, 2009 final decision and the Agency's April 22, 2010 final action concerning the two captioned EEO formal complaints that claimed 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. For the sake of judicial economy, the Commission consolidates the two appeals.
BACKGROUND
During the period at issue, Complainant was employed as a Full-Time Carrier Technician at the Agency's Oceanview Station in Norfolk, Virginia.
The record reflects that Complainant injured herself while on-the-job, which resulted in lymphedema in her right leg. A review of Complainant's April 2007 and October 2007 medical documentation indicated that her restrictions were as follows: lifting/carrying no more than 10-15 lbs (6-8 hours per day); sitting (6-8 hours per day), simple grasping/fine manipulation (8 hours per day); standing/walking/pulling/pushing (4 hours per day); reaching above shoulders (3-5 hours per day); twisting (1-2 hours per day); climbing/bending/stooping (1 hour per day), driving vehicle (.5 per day); and no kneeling. The record reflects that in the October 2007 documentation, Complainant's physician indicated that she could not work for more than 8 hours at any time.
Complainant filed two formal EEO complaints on September 7, 2007, and March 18, 2009, respectively.
Agency No. 4K-230-0197-07 (hereinafter referred to as "Complaint 1")
On September 7, 2007, Complainant filed a formal complaint claiming that the Agency discriminated against her on the bases of race (Caucasian), color (white), disability (lymphedema, right leg), and in reprisal for prior protected activity when:
(1) on or about August 7, 2007, she was instructed to report to the Bulk Mail Entry Unit (BMEU) for a week even though this was against her medical restrictions;
(2) on August 7, 2007, her supervisor commented, "I am not going to deal with your limitation, there will come a day when all you limited duty people are gone and that day is sooner than you think;"
(3) on March 26, 2009, she was issued a Letter of Warning; and
(4) since February 12, 2009, she has been denied reasonable accommodation when management forced her to sign a new offer of modified assignment (limited duty) which was not in compliance with her medical restrictions.1
Following an investigation, Complainant requested a hearing before an Administrative Judge (AJ).
Agency No. 4K-230-0074-09 (hereinafter referred to as "Complaint 2")
On March 18, 2009, Complainant filed Complaint 2, claiming that the Agency discriminated against her on the same bases identified in Complaint 1. However, Complaint 2 was comprised of two claims that were identical to Claims 3 and 4 in Complaint 1.
Following the investigation of Complaint 2, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC AJ or a final decision within thirty days of receipt of the correspondence. The record reflects that according to the Agency, Complainant did not respond. On September 18, 2009, the Agency issued a final decision on Complaint 2 finding no discrimination.
Complainant filed an appeal with EEOC from this decision. In a statement submitted in support of the appeal, Complainant's attorney noted that the claims on which the Agency issued a final decision in Complaint 2 had been consolidated with Complaint 1 and had recently gone to a hearing before an AJ. Complainant's attorney stated that he remained "perplexed as to why the Agency would issue a final decision in the first place." Complainant's attorney stated, moreover, that the Agency had "jumped the gun," as the AJ had not yet issued a decision on the consolidated complaints.
It appears that during the pendency of the hearing on Complaint 1, the AJ was apparently unaware of any final Agency action in regard to Complaint 2. Therefore, the assigned AJ consolidated Complaint 1 with the claims from Complaint 2 (even though no separate hearing request had been made for Complaint 2).
On January 12, 2010 and February 14, 2010, the AJ held a hearing on the now consolidated Complaints 1 and 2, which in essence encompassed all four claims identified above.
After holding a hearing, the AJ issued an April 13, 2010 decision on the consolidated complaints finding no discrimination. On April 22, 2010, the Agency issued a final action, implementing the AJ's finding.
The instant appeal followed.
ANALYSIS AND FINDINGS
Complaint 2
A final decision in Complaint 2 was issued by the Agency in September 2009, approximately four months before the AJ held one of several hearing sessions for Complaint 1, in January 2010. Complaint 2 contained the same two claims that were part of the claims adjudicated by the AJ in Complaint 1. There was no acknowledgement by the Agency that the identical claims were being adjudicated in separate complaints.
Given the confusing circumstances attendant to the existence and processing of Complaint 2, the Commission determines that the Agency erroneously issued a decision in Complaint 2. We therefore VACATE the Agency's September 18, 2009 final decision finding no discrimination in Complaint 2. The matters identified in Complaint 2 are fully addressed in Complaint 1 [claims (3) and (4)], and will be more fully discussed below.
Complaint 1
Following a hearing on January 12, 2010 and February 24, 2010, the AJ issued a decision on April 13, 2010, finding no discrimination. Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Regarding claim (1), the AJ found that on or about August 7, 2007, the Customer Service Operations Manager (M1) directed his subordinate manager to instruct Complainant to report to the BMEU for a week. The AJ determined that M1 testified that he selected Complainant and a named limited duty employee to the BMEU because the Oceanview Station was not meeting its productivity goals and that it used too many work hours. M1 stated that he chose Complainant "because I knew that she had been assigned to the vehicle maintenance facility, and during that assignment there she did work on computers.. . . So I knew she was versed in running a computer, and you know, I thought of her. And I heard good things, that. . . she's a good employee. She comes to work. Somebody that's dependable, somebody that I can count on."
M1 stated that Complainant requested to meet with him concerning her BMEU assignment. M1 stated that Complainant did not tell M1 that she could not perform the job. However, she told M1 that "she didn't like the hours of the job and that - - at that point she did let me know that - - she told me that there was a work restriction on a number of hours. She could not work overtime, I believe is what she said." M1 stated that he told Complainant that her schedule does not call for overtime "but there may be a time where she might have to work overtime if a situation arises." M1 stated that he told Complainant that he reviewed her limitations but did not see anything that indicated she could not work overtime. M1 stated that at the end of the meeting, he told Complainant that if she could not work overtime then she needed to go to her doctor and "get the CA-17 updated, and if it's updated to say you can't work overtime, then we don't work you any overtime." Moreover, M1 stated that Complainant "brought me a CA-17, which stated she could not work over eight hours - - or could not work overtime. And at that point I did not assign her back to the unit."
The AJ further noted that on August 7, 2007, after being on vacation, Complainant returned to the office. The AJ noted that Complainant's supervisor (S1) told Complainant and other employees that they "had their work cut out for them." S1 testified that Complainant told him that she needed to stay within her restrictions and S1 was surprised because he felt that "up to that point, I had no recollection that there was ever an issue with her [or] with . . . the interaction that we had with each other in the office and what her assignments were." S1 testified that Complainant also stated that she overexerted herself prior to her vacation and wanted to stick to her limited duties. S1 stated that Complainant's remark seemed to suggest that "there was some additional restriction that I wasn't aware of. So I'm surprised. You know, like, what restrictions?" The AJ noted that during his testimony, S1 indicated that he was a direct and goal-oriented manager.
Regarding claim (2), the AJ noted that S1 acknowledged making the statement to Complainant. Specifically, S1 stated, "it's common knowledge and everybody in the Post Office knows about the National Reassessment Program that's coming out and is something that's been discussed between the managers and the supervisors, et cetera. And basically, it's a system that's going to allow limited duty individuals to be better matched up with productive work instead of delivery where if we can't maximize the uses out of them. And that's something I've said several times. S1 further stated "I wasn't trying to threaten [Complainant] or be insensitive to her, it's just I'm a direct person like that. That's the way I run the floor. I'm the same way with everybody every day all the time."
Regarding claim (3), the AJ found that S1 issued the March 26, 2009 Letter of Warning for failure to follow instructions. Specifically, S1 stated that Complainant did not case a dog card and "present it to a carrier that goes out in the street so that they are aware of a particular hazardous situation, they could be injured by a particular animal. And not just that particular one. But it's done because even though a person may have knowledge of a dog being there, she may get hurt and that person from another station may come and take care that piece, so that person has not knowledge whatsoever. So he's now in a bind going to a particular area where there's a potential for injury." S1 stated that the named carrier notified him that Complainant miscased her route and failed to include the dog warning cards. Furthermore, S1 stated that he issued a Letter of Warning to a named carrier for failing "to case a dog on a particular street, which resulted in a carrier being bitten."
Regarding claim (4), the AJ found that the Manager of Customer Service (MCS) testified that on February 12, 2009, he wrote a written modified assignment for her because "at the time there became an issue with what her restrictions were and what her limitations were. And that's when I went to go look at her CA-17 to see what her restrictions were." MCS stated that a written job assignment "it's a offer, for one thing. You know, it's offering a job assignment. And this is just to detail the individual's job that they do daily." MCS stated that when he looked up Complainant's restrictions, he noted that "on those particular restrictions what was actually in dispute was the standing, which she, at that particular time, was able to stand for four hours intermittently. That was the biggest issue."
Further, MCS stated that Complainant did not sign the written job assignment because she wanted to consult with her lawyer about it. MCS stated that Complainant later came back and "signed it, but she didn't accept it." Specifically, MCS stated that Complainant indicated that she felt that she could not do it and "at that point we discussed it and she was allowed to - - well, she was given time to - - because she was saying that the CA-17 wasn't correct, and although, she did sign it, she doesn't accept it. She had a dispute about it." MCS stated that Complainant's updated CA-17 dated February 24, 2009 indicated her standing restrictions "went from four hours to zero." MCS stated that based on the updated CA-17, management wrote a different modified assignment for Complainant which she accepted.
Based on this evidence, the AJ found that the responsible Agency officials in these matters presented legitimate, nondiscriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of evidence, were a pretext for discrimination.
Complainant has offered no persuasive arguments on appeal establishing that the AJ's findings and conclusions were not supported by substantial evidence of record. Regarding the comment made by S1, we find that there is substantial evidence supporting the AJ's assessments on this matter. While the statement of S1 may have been blunt and insensitive, we nevertheless cannot find any impropriety relating to the AJ determination that the statement was not made with a desire to intimidate or act in reprisal against Complainant. The AJ expressly noted that to put S1's statement in perspective, he explained that it was "common knowledge" at the Agency that the National Reassessment Program was forthcoming at the time, and that it is going to allow limited duty employees to be better matched up with productive work. Moreover, regarding the August 2007 BMEU assignment, the record supports the AJ's determination that management was relying on the most current documentation available regarding Complainant's restrictions, and that Complainant provided to evidence to the contrary. Finally, the record supports that AJ's finding that a March 2009 Letter of Warning was not motivated by reprisal but instead was attributable to Complainant not properly casing a dog card. The AJ noted that such failure to warn carriers of "unsecured or problematic" dogs could result in employee dog bites, or other injuries.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action concerning Complaint 1 (and the duplicate claims in Complaint 2), because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.2
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
May 16, 2013
__________________
Date
1 As Claims 3 and 4 address matters that occurred two years after the filing of Complaint 1, it appears that these claims were later amendments to the original formal complaint.
2 Because we affirm the Agency's disposition of claim (2) for the reasons addressed herein, we will not address its alternative disposition on procedural grounds.
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0120093888
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120093888, 0120102478
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