01a52092
08-24-2005
Crystal L. Goolsby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Crystal L. Goolsby v. United States Postal Service
01A52092
August 24, 2005
.
Crystal L. Goolsby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52092
Agency No. 4C-270-0160-03
DECISION
Complainant initiated an appeal from a final decision dated December 17,
2004, concerning her complaint of unlawful employment discrimination.
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 Part-Time Flexible City Carrier at the agency's Zebulon
Post Office, North Carolina facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on October 7, 2003, alleging
that she was discriminated against on the basis of reprisal for prior
EEO activity when:
On various dates, including July 10, 2003 and July 26, 2003, complainant's
supervisor violated her medical restrictions.
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. Complainant
requested that the agency issue a final decision.
In its decision, the agency concluded that complainant failed to establish
a prima facie case of reprisal discrimination because complainant did not
demonstrate any nexus between her current claims and her prior protected
activity. The agency found that complainant's prior EEO activity took
place almost 8 months before the alleged discriminatory incidents and
accordingly the agency found that the prior protected activity was too
remote to infer any discriminatory motive on behalf of complainant's
supervisor. The agency further found that even if complainant had
demonstrated a prima facie case of reprisal discrimination, that
legitimate, non-discriminatory reasons motivated the agency to take
the appropriate actions it did. Specifically, the agency found that
complainant was not assigned to work beyond her medical restrictions and
that she had submitted medical documentation that �suggested� changes
to her current restrictions, without being specific, and accordingly,
the agency required that she submit additional, specific documentation
of her physical limitations.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000). In the absence of other evidence tending to
establish a retaliatory motive, complainant may demonstrate that the
adverse action followed his protected activity within such a period of
time that would be reasonable to infer retaliation. Hochstadt, supra
at 324.
We find that complainant has established a prima facie case of reprisal
discrimination, but that she has not shown the agency's reasons for
its actions are a pretext to mask discrimination. In her complaint,
complainant alleges, among other violations, that on July 15, 2003, she
was assigned to carry tubs that were beyond her medical restrictions.
She also alleges that at various times, she was scheduled by her
supervisor to work more than 6 consecutive shifts. Specifically,
she states that she worked everyday from September 10, 2003 through
September 18, 2003. Complainant also alleged that on September 17, 2003,
she was assigned to work exceeding the maximum number of hours that she
was permitted, by her medical restrictions, to stand.
The record shows that in December 2002, complainant suffered an injury
to her back and neck that required an adjustment to her normal duties,
consistent with her physical limitations. In the weeks that followed,
complainant submitted a number of Duty Status Reports (CA-17 forms),
which reflect different physical limitations, presumably the result
of the progress of complainant's treatment and which also reflect that
complainant was re-injured in March 2003, necessitating new restrictions
including a reduction in complainant's ability to lift or carry from
20 or 25 pounds, to 10 to 15 pounds, intermittently. The record shows
that forms CA-17 for March and June 2003, both specify that complainant
may lift no more than 10 - 15 pounds.
In July 2003, complainant submitted a CA-17 form, dated July 9, 2003,
accompanied by a note from her healthcare provider, that provided, among
other restrictions, that complainant is restricted to lifting 10 to 15
pounds, and may work �full time.� The provider's note stated that,
�[a]lthough [complainant] is capable of working a 40 hour work week,
it is more beneficial to the recovery of her injury if those hours are
worked over 5 - 6 days per work week.�
In her affidavit, complainant's supervisor states that she was advised
by an agency human resources official to obtain clarification regarding
whether complainant's restrictions had changed, by requesting that
complainant obtain a new form CA-17 from complainant's healthcare
provider because the accompanying note only suggested that complainant
was limited to working 5 or 6 days per week. She further denies that
complainant was assigned to seven days per week after July 28, 2003,
and also states that complainant's form CA-17 provides, as of May 11,
2004, that complainant is restricted to lifting 20 - 25 pounds of
weight, referring to forms CA-17 from October 2002 through May 2004.
Complainant's supervisor also acknowledges that she is aware of prior
EEO complaints and numerous grievances filed by complainant naming her
as the responding management official.
The Commission observes that in her complaint, complainant states that
the incidents of reprisal discrimination are ongoing and she describes
additional incidents that occurred after July 2003. The evidence shows
that, as requested, complainant submitted another CA-17 form, dated July
28, 2003, which clarified that complainant was restricted to working
�40 hours per week over 5 to 6 days per week.� Significantly, we note
that complainant's CA-17 of July 28, 2003, in the portion completed by
complainant's supervisor, complainant's work requirements are specified
as �6 - 8 hours per day, 7 days per week.�
In its final decision, the agency acknowledges that complainant
previously participated in the EEO process, and further, that she
identified her current supervisor as the responsible management official
in her prior complaint. Contrary to the agency's conclusion, we find
that complainant has shown the requisite causal connection between her
prior protected activity and the instant incidents in that less than
eight months elapsed between the filing of complainant's prior complaint,
which either precipitated an investigation, or at a minimum, was preceded
by a limited inquiry regarding the claims described in that complaint.
We note further that complainant's supervisor acknowledges her awareness
of complainant's prior EEO activity. We find that the agency erred in
its finding that complainant did not establish a prima facie case of
reprisal discrimination. Rather, the record shows that complainant
previously sought relief through the EEO process and within a short
time thereafter, complainant's supervisor, assigned her to tasks that
complainant alleges were beyond her written restrictions. However,
we find that after clarification from complainant's medical provider,
complainant was restricted to working 40 hours per week, over 5 or 6 days,
but not specifically restricted from working more than 7 consecutive
shifts.
Moreover, we find that complainant has framed her claim as one of
harassment, not one of failure to accommodate her medical limitations,
and accordingly, we find that complainant's supervisor merely scheduled
complainant for work according to the agency's operational needs, while
bearing in mind the limitations imposed by her medical provider, which
limitations changed from time to time over the course of complainant's
recovery and required reasonable clarification when the provider's
limitations and complainant's job requirements appeared at odds on the
same CA-17 form. We find that complainant has not shown that she was
subjected to adverse actions which were, more likely than not, intended
to harass complainant in reprisal for her prior EEO activity.
Therefore, we AFFIRM the agency's final decision finding no
discrimination.
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
August 24, 2005
__________________
Date