0120113700
02-25-2013
Deborah L. Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Deborah L. Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120113700
Hearing No. 531-2009-00197X
Agency No. 1K-211-0003-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 1, 2011 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Baltimore, Maryland Mail Processing and Distribution facility.
On December 3, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability (bi-lateral carpal tunnel) when:
1. on August 20, 2008, she refused to sign a modified job offer that was not within her medical restrictions, was told there was no work within her medical restrictions, and was sent home; and
2. on August 27, 2008, after submitting updated medical documentation, she was again told there was no work available within her restrictions and was again sent home.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On June 23, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
The AJ found that the record contains the following undisputed facts. Complainant developed carpal tunnel in 1998. As a result, Complainant was unable to perform the essential functions of her Mail Processing Clerk position. In January 1999, Complainant was assigned limited duties on Tour 3 in the Postal Employment Development Center (PEDC).
The AJ noted that as of March 15, 2007, Complainant's limitations were that she could intermittently lift and carry up to 10 pounds; sit up to 4 hours per day; stand up to 4 hours per day; walk up to 3 hours per day; bend/stoop up to 3-4 hours per day; twist up to 4-5 hours per day; pull/push up to 2-3 hours per day; perform simple grasping for 5-6 hours per day; perform find manipulation and reach above shoulder level for 2-3 hours per day.
The record reflects that Complainant remained in the PEDC until approximately August 2008. In August 2008, due to loss of equipment on which craft employees had to be trained, there was not sufficient work to support two full-time training technicians. There was a need for only one training technician, which is a high level training bid position. As a result, Complainant was removed from her limited duty Tour 3 PEDC position and placed on Tour 1.
The AJ noted that on August 21, 2008, Complainant's supervisor offered Complainant a modified duty assignment on Tour 1. The supervisor was of the opinion that the offer was within Complainant's restrictions. However, Complainant claimed that the offer was not within her restrictions. Complainant was sent home because there was no work available within her restrictions. The AJ further noted that before sending Complainant home, the supervisor considered assigning Complainant's duties of putting labels in trays, gathering unassigned letters and answering telephones. However, the supervisor did not offer Complainant these duties because she believed that Complainant's prohibition from performing simple grasping would preclude her from answering the telephone.
The record reflects that by Duty Status Report dated August 27, 2008, Complainant updated her restrictions. The record further reflects that the restrictions were generally the same as those set forth in the March 2007 report, with the exception that Complainant was now precluded from performing any grasping, fine manipulation and reaching above shoulder level. The AJ noted that Complainant's prohibition in regard to simple grasping and fine manipulation did not preclude her from grasping objects ranging in size from an ink pen to a telephone.
The AJ noted that on August 27, 2008, Complainant was offered another modified duty assignment, by a second supervisor. Complainant also declined this position because it was the same position offered by the supervisor, discussed above. Complainant determined that the offered position was again outside her limitations. The second supervisor then sent Complainant home, on the grounds that there was no work available within Complainant's restrictions. The AJ noted that both the August 21, 2008 and August 27, 2008 job offers required simple grasping of 5-6 hours per day and reaching above shoulder level 2-3 hours per day. Both of these requirements exceeded Complainant's restrictions as set forth in the August 27, 2008 Duty Status Report.
Furthermore, the AJ noted that several named employees identified by Complainant whose limitations were not known, were provided work within their limitations while she was not. The AJ noted, however, neither the supervisor nor the second supervisor supervised or provided the named employees with accommodation.
The AJ noted that in her affidavit, Complainant's supervisor stated that Complainant's core duties of her bid position were as follows: feeding/sweeping mail, dispatching letter trays, and collect mail from DBCS machines to process. The supervisor stated that she offered Complainant a modified duty offer on August 20, 2008 because Complainant "provided documentation that was from when she was working on tour 3. She stated she could not do simple grasping." The supervisor stated that the August 20, 2008 offer was within her medical restrictions. The supervisor stated, however, Complainant declined the offer because she claimed that the duties were not within her restrictions. The supervisor stated that Complainant was instructed "to update her CA 17 so that she could be accommodated." Furthermore, the supervisor stated that she sent Complainant home on August 20, 2008 because she "could not do simple grasping. Answering the phones involves simple grasping."
With respect to Complainant's allegations that several named employees were allowed to continue working within their restrictions while she was sent home, the supervisor stated she was not aware of the situation of these employees.
The AJ further noted in his affidavit, the second supervisor stated that while Complainant was unable to perform the core duties of her position, she answered telephones in the clerk office "for seven days and then she advised management she could no longer do any simple grasping." The second supervisor stated that Complainant provided management her medical restrictions but that the description of the restrictions was incomplete. Specifically, the second supervisor stated "according to the medical restrictions [Complainant] could lift 0-10 lbs. but was unable to do any simple grasping."
The second supervisor stated that on August 27, 2008, he offered Complainant a modified job offer which was in accordance to the uncompleted August 27, 2008 restrictions but Complainant declined the offer. The second supervisor stated that Complainant "was advised that restrictions were incomplete and that she needed updated restrictions. Restrictions were not specific in reference to simple grasping vs. lifting 0-10lbs (intermittent/continuous)." The second supervisor stated that Complainant "was advised that she needs to bring back updated medical which were more specific so management could make an accurate assessment in making a job offer. Employee did not provide any further medical documentation despite having appointments scheduled and employee did not return to work."
With respect to Complainant's allegations that several named employees were allowed to continue working within their restrictions while she was sent home, the second supervisor stated that he did not supervise any of the named employees identified by Complainant.
Based on the above-described evidence, the AJ determined that no discrimination had been proven. The AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination on the basis of race, sex, and disability discrimination.
The AJ found that the Agency did not discriminate against Complainant based on her race, sex, and disability when Agency management offered her two modified duty assignments which she declined (Claim 1). The AJ found that Complainant construed this Agency offer as, in essence, a denial of an accommodation of Complainant's preference. The AJ noted that Complainant made a request to work solely answering the telephone. However, the AJ determined that the Agency was not required to provide Complainant with the reasonable accommodation that she preferred as long as the reasonable accommodation which the Agency had provided was effective under the circumstances. Specifically, the AJ found that the Agency attempted to provide Complainant with a reasonable accommodation, but that nothing was available to accommodate her severe medical restrictions. The AJ acknowledged that the two modified duty assignments offers were outside of Complainant's limitations, as the duties required simply grasping and reach above shoulder level.
The AJ noted that Complainant argued she could have performed the work that her supervisor stated she considered assigning Complainant: putting labels in trays, gathering unassigned letters and answering telephones. The AJ noted, however, the Agency was not required to create a position for Complainant but rather is only obligated to reassign to a vacant funded position for which she was qualified. The AJ found no evidence in the record indicating that the duties the supervisor was contemplating to assign to Complainant constituted a vacant funded position. Rather, the AJ determined that the duties were "just a group of cobbled together duties that Complainant could hopefully perform for eight hours a day." Furthermore, the AJ noted that Complainant did not provide any evidence that there were vacant positions to which she could perform.
The Agency, in its final order, fully implemented the AJ's decision in its final action. The instant appeal followed. On appeal, Complainant argued that the AJ "placed an unfair burden upon appellant to show there were vacant positions available when complainant could have performed some of the core duties of her CURRENT position [emphasis in its original]." Complainant further argued that the AJ "was apparently okay with the Caucasian employee being accommodated but the African American Female, let's just throw her out of work."
ANALYSIS AND FINDINGS
As an initial matter, on appeal, Complainant has also requested that her disability claim in the instant complaint be subsumed into the McConnell, et. al. v. United States Postal Service (Agency No. 4B-140-0062-06) class action. In 2004, the Agency began the development of the National Reassessment Process (NRP) as an effort to "standardize" the procedure used to assign work to injured-on-duty employees. In the class complaint, McConnell claims that the Agency failed to engage in the interactive process during the NRP in violation of the Rehabilitation Act. Further, the Agency allegedly failed to reasonably accommodated class members during and after the process. On May 30, 2008, an EEOC Administrative Judge granted class certification in McConnell, et. al, which defined the class as all permanent rehabilitation employees and limited duty employees at the Agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act.
We note that the class in McConnell is defined, in relevant part, as those individuals subjected to NRP. We have reviewed the record in the instant matter, but cannot find any evidence presented that the actions that are the subject of Complainant's complaint occurred pursuant to the Agency's NRP. Here, the record shows that Complainant was subjected to the business needs of the Baltimore Mail Processing and Distribution facility, not the NRP. Specifically, we note that due to a loss of equipment in the PEDC, there was a need for only one training technician. As a result, Complainant was removed from Tour PEDC and placed on Tour 1. Accordingly, we have no basis to delay the adjudication of Complainant's disability claim because it should be subsumed in the McConnell class action.
AJ's Issuance of Summary Judgment
We must determine whether it was appropriate for the AJ to have granted summary judgment. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
No genuine issues of material fact or credibility issues have been identified which require a hearing and therefore, the AJ's issuance of summary judgment was appropriate. When a party moves for summary judgment, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. Complainant has not established that there remains a genuine issue of material fact in this case, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, we find that the AJ's grant of summary judgment was appropriate.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). 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 case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Complainant has not shown that the Agency wrongfully denied her reasonable accommodation. We specifically note that the Agency attempted to provide Complainant with modified duty positions commensurate with her medical restrictions. However, Complainant's most recent limitations prevented her from doing any simple grasping, fine manipulation or reaching above the shoulder. Further, although Complainant requested as an accommodation to only answer the telephone, we note that the Agency was not required to create a job for her.
Accordingly, we find that Complainant has not established that she was denied reasonable accommodation in violation of the Rehabilitation Act.
Disparate Treatment
Finally, to the extent that Complainant is alleging disparate treatment (apart from accommodation), we find that as discussed above, the Agency has articulated legitimate, nondiscriminatory reasons for its action. Further, we find the record is devoid of any evidence that Complainant's protected bases were factors in the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate that the Agency's reason were not the real reasons, and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Accordingly, we find that Complainant has failed to show that she was discriminated against as well.
We conclude that Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency legitimate, nondiscriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, we AFFIRM the Agency's final action because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the evidence does not establish that discrimination occurred.
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
February 25, 2013
__________________
Date
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0120113700
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113700
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