0120073820
11-17-2009
Denise A. Bryant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Denise A. Bryant,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120073820
Agency No. 1C191000607
DECISION
On September 10, 2007, complainant filed an appeal from the August
27, 2007 final agency decision (FAD) concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Plant and Distribution
Center in Philadelphia, Pennsylvania. Complainant was hired by the
agency in December 1990 and was diagnosed in 1992 with brain cancer.
Complainant stated that she was out for six months and when she returned,
she was placed on light duty. Complainant asserts that her cancer is
currently in remission. Subsequently, the agency moved to a new facility
which had fewer light duty assignments. In June 2006, complainant was
sent home when the agency could not provide her a light duty assignment.
On November 15, 2006, complainant submitted a request for temporary light
duty. On March 29, 2007, the agency's District Reasonable Accommodation
Committee (DRAC) held a hearing and requested that complainant submit
updated medical documentation to enable the committee to make a decision
regarding an accommodation. Complainant failed to submit the requested
documentation. On March 6, 2007, complainant filed an EEO complaint
alleging that she was discriminated against on the basis of disability
(brain cancer) when, in June 2006, and ongoing, she was denied light
duty work.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
Initially, the FAD found that complainant failed to establish a prima
facie case of disability discrimination. The FAD found that complainant
had offered no evidence that her disability substantially limited a major
life activity. The FAD found that complainant's medical restrictions
were only related to her current position and those restrictions
did not rule out complainant's ability to work in another position.
Further, the FAD found that complainant had not offered any evidence of
similarly situated employees outside her protected group who were treated
differently. Finally, the FAD found that complainant had presented no
evidence establishing a causal relationship between her disability and
the alleged discrimination. Thus, the FAD found that complainant failed
to establish a prima facie case of disability discrimination.
As to complainant's denial of a reasonable accommodation claim, the
FAD found that complainant was not considered an "otherwise qualified"
person under the Rehabilitation Act as she was not able to perform the
essential functions of the job with or without a reasonable accommodation.
Additionally, the FAD found that the agency's medical doctor did not
clear complainant to return to work. The FAD therefore found that the
agency had not denied complainant a reasonable accommodation.
The FAD then assumed arguendo that complainant had established a prima
facie case of discrimination and found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. The FAD found that
that the Light-Duty Coordinator (LDC) stated that complainant's request
for light duty was denied because the agency's medical officer declared
that she was "not fit for work." The FAD found that complainant failed to
submit any evidence into the record that the reasons articulated by the
agency were not the true reasons for their actions or that the agency
harbored any discriminatory animus. The FAD therefore concluded that
complainant failed to prove that she was subjected to discrimination
as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In the instant case, assuming complainant is disabled, and that she
could otherwise establish a prima facie case of discrimination on the
alleged basis, the agency has articulated a legitimate, nondiscriminatory
explanation for its actions. LDC states that complainant's medical
restrictions render her unable to perform the duties of her job.
Report of Investigation (ROI), LDC's Aff. at 2. The record reflects
that those restrictions include:
(1) lifting or carrying up to five pounds for up to four hours at one
time;
(2) lifting or carrying 5-10 lbs for up to two hours at one time;
(3) no lifting over 20 pounds;
(4) pushing or pulling up to 20 pounds for two hours at one time;
(5) sitting for four hours at one time;
(6) standing and bending for one hour at a time;
(7) no kneeling or climbing;
(8) grasping or sorting mail for four hours at a time and reaching above
shoulders for one hour at a time. ROI, Ex. 4.
Additionally, LDC asserts that given complainant's medical restrictions
and that complainant was not cleared to work by the agency's medical
doctor, there was no work available under the agency's light duty policy.
ROI, LDC's Aff. at 3. Further, the record reveals that at complainant's
reasonable accommodation hearing, the DRAC requested that complainant
submit updated medical documentation to assist them in making a decision
regarding an accommodation. ROI, Ex. 9. The record indicates that
complainant failed to submit the requested updated documentation.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons were
pretext for discrimination. Complainant asserts that her cancer is in
remission and she had been on light duty previously. See Formal Complaint
at 1. Further, complainant avers that employees with job-related injuries
are able to receive light duty assignments, while non job-related injured
employees are sent home. Id. We find that complainant has presented
no evidence establishing that the agency's reasons are pretextual.
We note that complainant failed to provide an affidavit in support
of her complaint despite a request by the EEO Investigator. In any
event, we find that the record is devoid of any persuasive evidence that
discrimination was a factor in the agency's decision to deny complainant
light duty work. At all times, the ultimate burden of persuasion remains
with complainant to demonstrate by a preponderance of the evidence that
the agency's reasons were not the real reasons, and that the agency acted
on the basis of discriminatory animus. Complainant failed to carry this
burden.
Denial of Reasonable Accommodation
To the extent that complainant is claiming a denial of a reasonable
accommodation, we note that 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 cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p). Assuming without deciding (for
the purposes of this decision) that complainant is an individual
with a disability and a qualified individual with a disability, the
Commission concludes nonetheless that complainant has failed to show
that the agency denied her request for a reasonable accommodation.
The record reveals that complainant failed to present the agency with
the requested updated medical documentation related to her request for
an accommodation. The agency's Human Relations Generalist (HR1) asserts
that the DRAC requested updated medical documentation and had not made
a decision because complainant had not provided the updated medical
documentation. ROI, HR1's Aff. at 1. Further, the record reveals that
at the DRAC hearing complainant was advised that she could also use the
bidding process or the agency's eReassign process to find suitable work.
ROI, Ex. 9. In light of complainant's failure to submit the requested
information, we find that no showing has been made that the agency failed
to accommodate complainant's disability.
CONCLUSION
We AFFIRM the agency's final decision finding no discrimination because
a preponderance of the evidence of record does not establish that
discrimination existed as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
November 17, 2009__
Date
2
0120073820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120073820