0120123221
03-04-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120123221
Agency No. 1G-338-0003-11
DECISION
On August 14, 2012, Complainant filed an appeal from the Agency's August 9, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal, according to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant worked as a Mail Processing Clerk at the Agency's Lakeland Processing and Distribution Center in Lakeland, FL. Mail Processing Clerks sort and distribute mail using mail processing equipment or manual methods. The position requires arduous exertion involving prolonged standing, walking, bending, and reaching, and may involve the handling of heavy containers of mail and parcels weighing up to 70 pounds. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131155 (June 7, 2013), Report of Investigation (ROI), Affidavit (Aff.) A, at 31.
Complainant had several medical conditions, including congestive heart failure, high blood pressure, diabetes, and asthma bronchitis. Additionally, in November 2009, she was diagnosed with breast cancer and took long-term leave on November 30, 2009 to undergo months of radiation and chemotherapy. Id. at 9.
I. Bid for Sales, Service, and Distribution Associate Position
While out on leave, Complainant bid on a Sales, Service, and Distribution Associate position. On December 16, 2009, she was notified that she was the senior bidder, but to qualify and be awarded the position, she would have to complete a 40-hour training course, pass a test, and complete 40 hours of on-the-job training.
On January 4, 2010, Complainant tried to schedule her training classes by telephoning a Supervisor of Customer Service Support, who worked at the Lakeland Post Office, a different facility from Complainant's Lakeland Processing and Distribution Center. Complainant told the Supervisor that she had cancer and was undergoing treatment, but maintained that she could still attend the training and return to work if needed. Complainant emphasized that she really needed the Sales, Service, and Distribution Associate job because of the hours.
The Supervisor determined that Complainant would be out on long-term sick leave until June 12, 2010 and would be unable to attend the next available training on February 1, 2010. Therefore, the Supervisor concluded that Complainant was not eligible to train for the job and ultimately awarded the bid position to someone else.
a. EEO Activity
On April 17, 2010, Complainant filed a formal complaint, claiming that the Agency discriminated against her on the bases of race (African-American), sex (female) and disability when on or about February 1, 2010, the Agency gave Complainant's bid assignment to another employee.
Eventually, Complainant returned to work, and on July 28, 2010, she submitted an affidavit for her pending EEO complaint. She averred that her breast cancer treatment resulted in the removal of lymph nodes under her left arm and cancerous portions from her left breast. As a result, she was limited in the amount she could lift (up to 10 to 20 pounds) and push and pull. Id.
Complainant then explained how the Agency's denial of her bid assignment harmed her:
[T]his act has caused undo [sic] stress and anxiety as a single parent having to work the night shift and not being at home at night with my three children. The care and safety of my children is of upmost concern. Having congestive heart failure I was given [medication] to make my heart rest at night. Now that I am on the night shift I have found it hard to get the rest needed to improve my medical conditions. Working nights have caused depression, lack of rest and the fear of my cancer returning. I saw a medical program which said that women who work the night shift for a period of time have a greater risk of getting breast cancer. Id. at 13.
For a remedy, she requested, in part, to be given a job similar to the original bid with the same days off and daytime work hours. Id.
II. Reasonable Accommodation Requests
From April 2011 to October 2011, Complainant and her non-legal representative attempted to make three requests for reasonable accommodation to two different Agency officials.
a. First Request: Complainant's April 20, 2011 Request for Light Duty
On April 20, 2011, Complainant wrote a note, requesting light duty:
To Whom It May Concern:
I am requesting light duty from April 12, 2011 until May 12, 2011 due to continuous health problem. Your cooperation in granting this request would be greatly appreciated. Complainant v. U.S. Postal Serv., EEOC Appeal No. (0120123221), ROI, Aff. B, at 13.
She attached a document titled "Return to Work Medical Clearance Guidelines," signed by her physician on April 12, 2011. The document reiterated:
* Her diagnosis of breast cancer;
* Her prognosis was good;
* The date of her previous surgical procedures.
Id. at 12.
The document indicated that Complainant would be medically absent from April 12, 2011 to May 12, 2011, but did not explain the reason for her medical absence during this time period.
b. Second Request: Complainant's Representative's April 22, 2011 Request for Schedule Modification
On April 22, 2011, Complainant's non-legal representative submitted a written request for a reasonable accommodation on behalf of Complainant to the Supervisor of Customer Service Support at the Lakeland Post Office, the Agency official involved in Complainant's previous EEO matter. Complainant's non-legal representative wrote:
[Complainant's] disability requires a schedule modification specifically working daytime hours. Her urgent need to a schedule modification is in part due to chronic depression as a result of management's decision to revoke [Complainant's] opportunity to receive training on a job bid posting that she was designated senior bidder . . . . I believe [Complainant's] attendance issues . . . are a product of the employers' conduct, thus qualifies as a job related injury. I am requesting you consider the merits of processing a occupational injury claim. Since I believe a reasonable accommodation, in this case, is a critical health issue, I am requesting you consider a modified schedule change as immediate relief until you have an opportunity to consider other methods of providing reasonable accommodation. Complainant v. U.S. Postal Serv., EEOC Appeal No. (0120123221), ROI, Aff. D, at 11.
c. Agency's Response to First Request
On April 26, 2011, the Plant Manager for the Lakeland Processing and Distribution Center (Plant Manager) denied Complainant's request for light duty. She wrote:
At this time there is no work available within the physical restrictions set by your physician. Your request for light duty is disapproved. When your physician feels your restrictions have changed, please feel free to resubmit an updated request with additional medical documentation. Id. at 14.
d. Agency's Response to Second Request
In May 2011, the Supervisor of Customer Service Support at the Lakeland Post Office informed Complainant's representative that the Supervisor had no authority over the April 22, 2011 request to modify Complainant's duty hours. She had no reporting relationship with Complainant: she worked in Customer Service at the Lakeland Post Office while Complainant worked as a Mail Processing Clerk at the Lakeland Processing and Distribution Center.
The Supervisor advised Complainant's representative to follow the appropriate request through Complainant's facility's installation head, the Plant Manager for the Lakeland Processing and Distribution Center, and the District Reasonable Accommodation Committee. Id. at 1, 3, 7.
e. EEO Complaint
Complainant's representative responded to the Supervisor's verbal denial by indicating that he would file an EEO complaint rather than contact the District Reasonable Accommodation Committee:
April 22, 2011 I sent a written request for reasonable accommodation for co-worker [Complainant]. I received a verbal denial from [Supervisor of Customer Service] May 23, 2011. [Supervisor] claims she spoke with the Postmaster . . . and there is no accommodation available to [Complainant] and I could contact [the District Reasonable Accommodation Committee.] Instead I am filing this discrimination complaint based on physical disability and reprisal. There is reasonable accommodations [sic] available, just not for [Complainant.] ROI, at 50.
Complainant initiated EEO counselor contact on June 7, 2011 and filed a formal complaint on August 6, 2011, alleging discrimination on the bases of race (African American), disability, and reprisal when the Agency denied her reasonable accommodations.
f. Third Request: Complainant's October 5, 2011 Request for Reasonable Accommodation
On October 5, 2011, Complainant wrote to the Plant Manager for the Lakeland Processing and Distribution Center:
I [Complainant] due to my ongoing medical issues am requesting reasonable accommodation be given to me because of my inability to perform all the functions of automation and flat sorter duties. Id. at 18.
In addition, she attached a letter from a physician dated October 5, 2011:
Due to [Complainant's] medical condition she may be frequently absent from work and should refrain from lifting over 20 pounds.1 Id. at 17.
g. Agency's Response to Third Request
On October 7, 2011, the Plant Manager reminded Complainant "that the attached medical documentation dated 10/5/11 . . . is no different than the documentation you submitted on 5/12/11. You were advised earlier we will continue to accommodate you within the duties of your bid position."
III. Final Agency Decisions
a. First Decision
Initially, the Agency issued a decision, dismissing the complaint for failure to cooperate, in that Complainant failed to provide an affidavit. On appeal in Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120121035 (May 9, 2012), the Commission found there was insufficient evidence to support a conclusion that Complainant purposely engaged in delay or contumacious conduct. Instead, the Commission determined the record had sufficient information for the Agency to continue investigating the complaint by collecting evidence from management witnesses. The Commission remanded the matter to the Agency, concluding that the Agency should have completed the investigation without Complainant's affidavit and allowed for adjudication on the merits, rather than dismissing the complaint.
Upon remand, the Agency obtained affidavits from Agency officials, such as the Plant Manager for the Lakeland Processing and Distribution Center and the Supervisor of Customer Service at the Lakeland Post Office. On May 25, 2012, the Agency completed its investigation and provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. The Complainant failed to request either a hearing or a final agency decision, so the Agency issued a final decision on the merits.
b. Second Decision
In this decision, the Agency first analyzed whether Complainant was denied a reasonable accommodation. The Agency noted that there were two possible impairments raised under the disability claim: chronic depression, and lumpectomy and lymph node removal.
For chronic depression, the Agency found there was no medical documentation or testimony about Complainant's alleged mental impairment. Therefore, the evidence did not show that Complainant was an individual with a disability due to chronic depression.
As for her breast cancer-related physical impairments, the Agency found that medical documents showed that Complainant's recovery from her lumpectomy operation rendered her unable to lift more than 20 pounds regularly. Therefore, the Agency determined that Complainant was an individual with a disability in that her recovery from breast cancer surgery substantially limited her in the major life activity of lifting.
Next, the Agency then determined that Complainant was a qualified individual with a disability, who could perform the essential functions of a Mail Processing Clerk, with a reasonable accommodation concerning her lifting restrictions.
Then, the Agency concluded that it did not deny Complainant a reasonable accommodation. The Agency found that the Plant Manager had appropriately determined that Complainant did not need an additional accommodation for the only physical limitation that she knew of, the lifting restrictions. In addition, the Agency found that Complainant's representative mistakenly conveyed a request for reasonable accommodation to the wrong Agency officials in the Lakeland Post Office, who had nothing to do with Complainant and who were not authorized to grant or deny the reasonable accommodation request. These Agency officials attempted to steer Complainant's representative to the appropriate Agency official who could take action on the request for accommodation, the Plant Manager of the Lakeland Processing and Distribution Center.
Next, the Agency analyzed Complainant's claims of disparate treatment on the bases of race, disability, and reprisal for prior EEO activity. Complainant argued that she was treated less favorably than three employees:
* a white female full-time Rural Carrier Associate Clerk of the Lakeland Post Office, who had no prior EEO activity;
* a white female full-time Mail Processing Clerk of the Lakeland Post Office, who had no prior EEO activity; and
* a white male full-time Labor Custodian of the Zephyrhills Post Office, who had no prior EEO activity.
Complainant argued that these three employees were given day assignments while the Agency denied her representative's request to modify her schedule to day-time hours.
The Agency, however, found these comparators to not be similarly situated to Complainant, in that they did not have the same impairments that Complainant had (all three had suffered on-the-job injuries while Complainant had not), and worked at different facilities under different supervisors than Complainant. Therefore, the Agency determined that Complainant did not establish a prima facie case of disparate treatment on the bases of race or disability.
As for the reprisal claim, the Agency determined that the responsible management official in this matter was the Plant Manager of the Lakeland Processing and Distribution Center, because she had the authority to act on Complainant's reasonable accommodation requests. In her affidavit, the Plant Manager denied having any knowledge about Complainant's prior EEO activities. Nor did she know about the separate request Complainant's representative had made to the Supervisor of Customer Service at the Lakeland Post Office, a separate facility. Therefore, Complainant could not establish a prima facie case of retaliation for prior EEO activity, because the evidence did not show that the Plant Director knew of Complainant's prior EEO activity at the time she denied Complainant's reasonable accommodation requests.
Although the Supervisor of Customer Service at the Lakeland Post Office did have knowledge of Complainant's prior EEO activity, the Agency found that the Supervisor had no authority to act on the Complainant's representative's reasonable accommodation request, and could not be considered the acting management official in this case.
CONTENTIONS ON APPEAL
On appeal, Complainant's non-legal representative contends that the Agency erred in finding no discrimination, in that Complainant's representative made a valid written request for reasonable accommodation to the Supervisor of Customer Service on April 22, 2011, but the Agency "decided not to activate the interactive process." Such a failure to engage in the interactive process after Complainant's representative had made a valid reasonable accommodation request violated the Rehabilitation Act.
Moreover, Complainant contends that the Agency's failure to engage in the interactive process with Complainant was evidence of intentional discrimination.
ANALYSIS AND FINDINGS
I. Standard of Review
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
II. Reasonable Accommodation
The Rehabilitation Act requires federal agencies to provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.
Here, it appears that Complainant attempted to make three reasonable accommodation requests:2
* reassignment to a light duty position from April 12, 2011 to May 12, 2011 due to continuous health problems;
* modify work schedule to work daytime hours due to chronic depression;
* reasonable accommodation due to ongoing medical issues, such as frequently being absent from work and being restricted from lifting more than 20 pounds.
However, Complainant's representative challenges only the Agency's actions regarding the second request: the April 22, 2011 request to modify the work schedule to day time hours due to chronic depression. "Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 9, Section IV, Part A (Nov. 9, 1999). Because Complainant's representative on appeal only specifically challenges the Agency's actions regarding the second accommodation request, we exercise our discretion to consider only that reasonable accommodation issue.
a. Requesting Reasonable Accommodation and the Interactive Process
When an individual decides to request accommodation, the individual or her representative must let the employer know that she needs an adjustment or change at work for a reason related to a medical condition.
While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer to clarify what the individual needs and identify the appropriate reasonable accommodation. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," a prerequisite for the individual to be entitled to a reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002, Questions 1 & 5 (Oct. 17, 2002).
Here, Complainant's representative essentially contends that the Supervisor of Customer Service at the Lakeland Post Office had a legal duty under the Rehabilitation Act to engage in the interactive process with Complainant's representative, rather than advise him that (1) she did not have any reporting relationship with Complainant and had no authority to either grant or deny the representative's April 22, 2011 request to modify Complainant's work schedule, and (2) the representative should direct his request to the proper Agency officials who had authority to act on this request, Complainant's supervisor and the District Reasonable Accommodation Committee.
We are not persuaded by this argument. Reasonable accommodations remove workplace barriers that keep individuals with disabilities from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed).
It would seem odd for the Rehabilitation Act to impose a duty on Agency officials to clarify the needs and identify the appropriate reasonable accommodation of a random employee with whom they have no relationship (working, reporting, or otherwise) and have no authority to remove the workplace barriers. To interpret the Rehabilitation Act as imposing such a duty would result in a counterproductive process in which individuals with disabilities would engage in a fruitless interactive process with agency officials, who at the end would not be able to grant any reasonable accommodation and remove the workplace barriers.
Therefore, we conclude the behavior of the Supervisor of Customer Service at the Lakeland Post Office was not sufficient to hold the Agency liable in this case.
We note in dicta that even if we were to assume that the Supervisor had failed to engage in the interactive process with Complainant's representative, we would have found that Complainant did not sufficiently demonstrate that she was denied a reasonable accommodation. The Commission has previously held that an agency's failure to "properly engage in the interactive process, does not, by itself, demand a finding that complainant was denied a reasonable accommodation." Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002). "Rather, to establish a denial of a reasonable accommodation, complainant must establish that the failure to engage in the interactive process resulted in the agency's failure to provide a reasonable accommodation." Id.
Here, Complainant did not submit any sworn testimony or medical documentation to substantiate that her chronic depression substantially limited her in a major life activity, such that she was entitled to a reasonable accommodation of a modification in her work schedule to daytime hours. As noted above, Complainant failed to submit any affidavit testimony, and what medical documentation exists in the record only shows that she had a 20-pound lifting restriction. Therefore, even if we had found that the Supervisor had failed to engage in the interactive process, this by itself, would not have been sufficient to establish that Complainant was denied a reasonable accommodation.
III. Disparate Treatment
To prevail in a disparate treatment claim, 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 Construction 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, 411 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Here, we find that the Agency did not err in finding that Complainant did not establish prima facie cases of discrimination on the bases of race, disability, and reprisal for prior EEO activity.
We find that the comparators identified by Complainant to support her claim of race and disability discrimination were not similarly situated to Complainant, in that they did not have the same impairments that Complainant had (all three had suffered on-the-job injuries while Complainant had not), and worked at different facilities under different supervisors than Complainant. Therefore, the Agency determined that Complainant did not establish a prima facie case of disparate treatment on the bases of race or disability.
Complainant did not show that the Plant Manager of Lakeland Processing and Distribution Center had any knowledge of Complainant's prior EEO activities before she denied Complainant's reasonable accommodation requests. Nor are we convinced that the articulated reason for why the Supervisor of Customer Service at the Lakeland Post Office denied Complainant's representative's reasonable accommodation request, that she had no authority to act on this reasonable accommodation request because she had no working relationship with Complainant, was a pretext to mask a retaliatory motive based on her involvement in Complainant's prior EEO matter.
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, finding no discrimination on the bases alleged.
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
___3/4/15_______________
Date
1 The record also contains another "Return to Work Medical Clearance Guidelines," signed by Complainant's physician on May 12, 2011. This document indicated that Complainant would be medically absent from May 12, 2011 to June 12, 2011. The document indicated that she was restricted to lifting 10 to 20 pounds "occasionally." Id. 15-16. The record is not clear when Complainant may have submitted this medical document was submitted to the Agency.
2 For purposes of this decision only and without so finding, we are assuming that Complainant is in fact an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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