07A20051
09-22-2003
Danna McCullough, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Danna McCullough v. United States Postal Service
07A20051
09-22-03
.
Danna McCullough,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A20051
Agency Nos. 4-J-604-1185-99, 4-J-604-1194-96, 4-J-604-0062-97,
4-J-604-0063-97, 4-J-604-0034-97, 4-J-604-0143-97
Hearing Nos. 210-AO-6302,210-AO-6340, 210-AO-6341, 210-AO-6342,
210-AO-6343,
210-AO-6344
DECISION
Following its November 6, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the bases of her sex (female) and race (African
American).<1> The agency also requests that the Commission affirm its
rejection of the AJ's order for damages. For the following reasons,
the Commission affirms the agency's final order.
Complainant, a Mail Handler employed at the agency's Downers Grove postal
facility, filed formal EEO complaints with the agency on June 13, 1997,
alleging that the agency had discriminated against her on the bases of
race (African-American), sex (female), disability (tendinitis of the
left foot), and reprisal for prior EEO activity with respect to a number
of claims.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant had established that
she was discriminated against based on her race and sex when she was
not allowed a T-6 (Letter Carrier) bid position. The AJ found that
complainant had shown that she was a member of one or more protected
classes, that she was subjected to an adverse employment action,
she was told she would not get a certain bid and subsequently, the
agency disallowed her successful bid, and finally, others outside of
her protected status were treated better. The AJ noted that the bid
was awarded to a white male. The AJ found that the agency failed to
articulate legitimate, nondiscriminatory reasons for its actions by
stating that complainant's restrictions would not allow her to perform
the duties of the bid. Moreover, the AJ did not find credible that
the bid was disallowed because complainant failed to submit sufficient
documentation stating she could perform the duties of the position within
a six month period. The AJ concluded that complainant established
that more likely than not, the reasons provided by the agency were
a pretext for discrimination. In reaching this conclusion, the AJ
found that complainant believed that she could perform the duties of
the bid position within her restrictions and found that the physician's
letter which complainant provided was subject to interpretation. The AJ
found that the �physician's letters may be interpreted to mean that the
complainant could presently perform the duties of the bid consistent
with her present restrictions.� The AJ also found that the evidence
indicated that some of complainant's restrictions were temporary.
The AJ maintained that complainant was not given a chance to show that
she could do the job within her restrictions. Finally, the AJ found
that complainant did not establish her other claims of discrimination.<2>
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by finding discrimination based on
complainant's race and sex when her successful T-6 bid was disallowed.
The agency argues that the finding of discrimination regarding the T-6 bid
is not supported by the evidence in the record. The agency contends that
the AJ erred when he found that others outside of her protected groups
were treated more favorably. The agency maintains that, contractually,
complainant was not entitled to the position due to her restrictions
unless her physician stated that she could perform the duties of that
position within six months, and complainant was unable to provide this
documentation. The agency agreed with the AJ that complainant did not
establish her other claims of discrimination. Complainant did not submit
a brief on appeal.
The T-6 Bid Position
On January 4, 1997, a T-6 position was made available for bid to all
regular carriers and unassigned regular carriers. Complainant bid the
position. At the time she made the bid she was on limited duty with
limited walking and standing restrictions. Complainant's limited duty
assignment consisted of casing mail without delivering on a walking
route. Complainant was awarded the bid. Complainant was told that
she was entitled to the bid assuming she provided the proper medical
documentation to support her physical ability to perform the full duties
of the Letter Carrier position.<3>
In January 1997, complainant submitted a letter, dated January 21, 1997,
to support that she could perform the full-duties of the T-6 position.
The letter read �This is to certify that Danna McCullough is under my care
with diagnosis of Extensor Hallucis Longus Tendinitis and Chronic Ankle
Bursitis left lower extremity. The patient's new position is certified
by me for the six (6) month period; keeping her restrictions.� The
agency informed complainant that the letter was unacceptable because the
letter indicated that complainant was to keep her present restrictions,
which were 2 hours walking and 4 hours standing. Complainant submitted
another letter on January 28, 1997, and again the documentation
indicated that complainant should keep her present restrictions.<4>
No other documentation referring to complainant's physical restrictions
was submitted. Complainant failed to submit any documentation which
indicated that she could perform the full duties of a Letter Carrier
which required 8 hours of walking and 8 hours of standing. Therefore,
the T-6 bid was disallowed effective February 5, 1997.
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. After a
thorough review of the record, including consideration of all statements
submitted on appeal, the Commission concludes that the AJ erred in finding
that complainant was discriminated against based on her race and sex.
We find a lack of substantial evidence in the record which supports the
AJ's finding that the agency's legitimate, nondiscriminatory reasons
were unworthy of belief or that the reasons were pretext for prohibited
discrimination.
We find the evidence shows that complainant, as the most senior applicant,
was awarded the T-6 bid. Since complainant was on limited light duty<5>,
she was required to provide documentation that she could do the job within
six months. Complainant submitted documentation that indicated that she
had to remain within her current restrictions for the next six months.
Complainant was told that the documentation that she provided was
not adequate and that she needed to provide additional documentation.
Complainant provided identical documentation. Complainant lost the
bid because she was unable to show that she could perform the duties
within six months. Complainant's belief that her restrictions would
not interfere with the job and that she could do the job within eight
hours is irrelevant. The agency is bound by the restrictions submitted
by her physician. Further, we find that the AJ's argument that the
physician's letter could be interpreted to comply with the requirement
that complainant would be able to perform the position within the six
month period, is not supported by the evidence, given the clear statement
that complainant would need to �keep her restrictions.� The record is
clear, that complainant was told that the letter was inadequate and yet
she submitted the same letter a second time. Additionally, complainant's
claim that she was working eight hour shifts is not supported by the
record. The record shows that complainant was routinely sent home when
there was no work available within her restrictions.
The Commission finds that even assuming complainant established a prima
facie case of race and sex discrimination, the agency has articulated,
legitimate nondiscriminatory reasons for its actions, namely, complainant
failed to provide documentation indicating that she could perform the
position within the prescribed six month period. We find complainant
failed to show that the agency's reasons were pretext for prohibited
discrimination. Accordingly, we reverse the AJ's finding of race and sex
discrimination with regard to the T-6 bid, and find that the agency did
not discriminate against complainant. We also agree that complainant
did not demonstrate that she was discriminated against with respect to
her other claims.
Therefore, the AJ's decision that the agency discriminated against
complainant is REVERSED, and agency's decision that it did not
discriminate against complainant is AFFIRMED.
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
___09-22-03_______________
Date
1 In Complaint No. 4J604-0062-97, complainant maintained that she was
discriminated against based on her race, sex and reprisal when her
successful T-6 bid was disallowed. The AJ found that complainant had
been discriminated against on the bases of race and sex only.
2 The complainant filed several complaints which were consolidated
before the hearing. Complainant maintained that based on her race, sex,
disability and reprisal for prior EEO activity, she was discriminated
against when: (1) she was sent home early; (2) she was forced to sign
3971s everyday, although work was available; (3) she was not excepted
to a new position (mail handler) at the South Suburban facility; and (4)
when the agency refused to alter her 3971s and attendance record. The AJ
found no discrimination as to all of complainant's claims. Complainant
did not appeal the AJ's finding of no discrimination as to these claims.
3 The functional requirements of full-time Letter Carriers are heavy
lifting up to 70 pounds, pushing 2 hours, reaching above shoulders,
walking 8 hours, standing 8 hours, kneeling 2 hours, bending 8 hours, etc.
4 The second letter from the physician was identical to the first.
5 The terms �light duty� and �limited duty� are interchanged throughout
the decision. Based on the record, it appears complainant was on
limited duty.