01995641
04-25-2002
Elise A. Mossburg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elise A. Mossburg v. United States Postal Service
01995641, 01996254
April 25, 2002
.
Elise A. Mossburg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01995641, 01996254
Agency Nos. 4J-460-0140-98, 1J-461-0111-98
DECISION
Complainant timely filed appeals with the Equal Employment Opportunity
Commission (EEOC or Commission) from two final agency decisions issued
concerning her complaints of unlawful employment discrimination in
violation of � 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The appeals are accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented are (1) whether the agency discriminated against
complainant based on disability (chronic migraines/fibromyalgia) when,
on April 17, 1998, the agency did not grant her request to install
on/off light switches for overhead hanging fluorescent lights where she
worked (Complaint 1); and (2) whether the agency discriminated against
complainant based on reprisal (prior Rehabilitation Act activity) when,
on June 1, 1998, an overhead light fixture was moved directly over her
work station and when she was required to update the medical excuse for
her overtime exemption on a monthly basis (Complaint 2).
BACKGROUND
Complainant filed two EEO complaints alleging the above issues.
Following the investigation of each complaint, the agency notified
the complainant of a right to request a hearing. She did not do so in
either case. The agency then issued final agency decisions in each case,
both of which found no discrimination. The instant appeals followed.
Complaint 1
Complainant is employed at the Kokomo Post Office in Kokomo, Illinois as
a Mark-Up Clerk, Automated, PS-4. She works in the Computer Forwarding
Unit (CFU). She was diagnosed with fibromyalgia and migraine headaches
without aura. In April 1997, complainant asked management to install
toggle switches for the four hanging fluorescent lights above the
computer terminals where she works. She submitted a note by one of
her physicians stating that these lights were triggering migraines
which could or would<1> be better with adjusted intensity. The agency
declined to grant complainant's request. The Kokomo Post Office Manager
of Maintenance explained that these lights were for the entire room,
and a light meter reading showed that turning off any one of them would
bring the entire Computer Forwarding Unit below minimum standards used by
the agency.<2> The CFU Supervisor expressed the opinion that substandard
lighting would increase the typing error rate of complainant and three
other Computer Forwarding Unit clerks.
Complainant stated that the lights aggravate her fibromyalgia, which in
turn causes migraines, and that her migraines are also independently
aggravated by the light. None of the medical documentation by her
physicians in the record attributes the migraines to fibromyalgia.
Complainant also contended that the noise and heat of the fluorescent
lights aggravate her condition<3>, albeit none of the medical information
by her physicians indicated this.
Complainant described her migraines as causing pain, nausea, dizziness,
and affecting her vision and concentration. While she did not state their
frequency in her investigatory affidavit, the record contains doctor notes
and absence slips which indicate that complainant missed time from work
due to migraines or injections to treat them approximately once in June
1997, once in July 1997, twice in February 1998, and three times in
March 1998. In April 1998, complainant filed a workers' compensation
claim stating that she was having almost weekly migraines because of the
hanging lights, and that she did not have many migraines outside work.
Complainant stated elsewhere that she has overslept due to migraine
medication.
After the EEO investigation was completed, complainant wrote a letter
commenting on the investigation. She acknowledged that there was
a period that she had fewer migraines as stated by her supervisor<4>,
which she attributed to additional and increased medication. She stated,
however, that the effectiveness of the medication later decreased.
According to complainant, she missed work due to migraines once in July
1998, three times in August 1998, once in September 1998, four times
in October 1998, three times in November 1998, twice in December 1998,
three times in January 1999, four times in February 1999, and three
times in March 1999. She also stated that she missed work on a number of
occasions due to fibromyalgia episodes, the symptoms and limitations of
which she did not describe. A rheumatologist who diagnosed complainant
with fibromyalgia with chronic pain syndrome wrote in his February 1998
report that complainant had multiple soft tissue points, and that she
complained of paresthesias and pain in her hands and wrists which she
said got markedly better when she was off work for any length of time.
In her investigative affidavit complainant contended that in the Kokomo
Post Office many people have lights at their workstations which have
on/off switches available for employees to use. The Kokomo Post Office
Manager of Maintenance responded that the lights to which complainant
referred were used on distribution and letter carrier cases (where sorting
is done), and they are different from overhead lights for an entire room.
In her response to the EEO investigation, complainant averred that lights
used elsewhere on the workroom floor can be controlled by toggle switches.
She also contended that all upper ceiling lights for the workroom
floor were replaced, except the ones in the Computer Forwarding Unit.
Complainant stated that the hanging lights in question are over four
work stations, and their light bulbs are exposed without covering.
Complaint 2
About two months after complainant initiated Complaint 1, while
complainant was on leave the agency relocated an overhead light so that
it was directly over complainant's work station. In her affidavit,
complainant's supervisor explained that the light was moved over
the machine where complainant worked because a study conducted in
response to complainant's earlier request for the installation of toggle
switches revealed that the lighting in the area was not in compliance
with Occupational Health and Safety Administration (OSHA) standards.
The supervisor stated that the light was moved while complainant was on
leave because that was a time when maintenance personnel were available
to do the work. The supervisor further explained that all employees
were subject to the requirement to update medical excuses for overtime
exemptions on a monthly basis, and had been for several years prior to
the events at issue.
ANALYSIS AND FINDINGS
Complaint 1
As a threshold matter, one bringing a claim of discrimination on the
basis of disability must show that she is a qualified individual with a
disability within the meaning of the Rehabilitation Act. An individual
with a disability is one who (1) has a physical or mental impairment that
substantially limits one or more major life activities, (2) has a record
of such an impairment or (3) is regarded as having such an impairment. 29
C.F.R. � 1630.2(g). Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i).<5>
The Commission agrees with the agency's finding that complainant has not
established that she is an individual with a disability. Complainant
has migraines where she is unable to function during the course of the
migraine. She stated, however, that she gets few migraines outside work.
Complainant referenced episodes of fibromyalgia that caused her to
miss work, but does not explain how she is limited by these episodes.
While complainant stated on appeal that she avoids extended exposure
to fluorescent lighting when outside work, she does not identify any
substantial limitations to activities outside the workplace.<6>
With respect to the major life activity of working, we note that
complainant contends that four hanging fluorescent lights in the
Computer Fowarding Unit of the Kokomo Post Office trigger her migraines
and episodes of fibromyalgia. By arguing that others on the workroom
floor can turn off lights, complainant suggests that other locations
on the workroom floor would not trigger her migraine and episodes
of fibromyalgia. Similarly, complainant argues that the lighting
in the Computer Forwarding Unit is unique, i.e., no light covers.
Not being able to work as a clerk in one location in the Kokomo Post
Office does not constitute a substantial limitation on the major
life activity of working. See Groshans v. Department of the Navy,
EEOC Appeal No. 03950109 (February 1, 1996) (individual with severe
allergy that had anaphylactic reactions who could work anywhere but one
office building was not substantially limited in the ability to work).
Cf. EEOC Regulation 29 C.F.R. Pt. 1630.2(j), App. (an individual is
not substantially limited in working when she is unable to perform
one particular job for one employer). By the same token, we find that
complainant has not shown that she has a record of a disability, or
that she was regarded as having a disability. Because complainant has
not established that she is within the protection of the Rehabilitation
Act, she has failed to prove disability discrimination. The Commission
therefore AFFIRMS the FAD pertaining to Complaint 1.
Complaint 2
As a preliminary matter, the Commission notes that in its FAD, the agency
did not address complainant's claim regarding the movement of the overhead
light fixture, although this claim was investigated. Rather, the FAD
construed this claim as being identical to a claim previously raised by
complainant in Complaint 1. As set forth above, the claims in Complaint
2 are distinct from the claim raised in Complaint 1. The agency's
�dismissal� of the claim in Complaint 2 regarding the overhead light
therefore was improper. Given that the claim was investigated, however,
the Commission will address this claim on the merits.
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
Administration, EEOC Request No. 05960403 (December 6, 1996) (citing
McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal
claim, in accordance with the burdens set forth in McDonnell Douglas,
and 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), complainant may establish a prima facie case of
reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of her protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse action.
Whitmire v. Department of the Air Force, 01A00340 (September 25, 2000).
The Commission finds that complainant has established a prima facie case
of reprisal discrimination. Complainant engaged in EEO activity, of
which the alleged discriminating official in this case (her supervisor)
was aware, and within two months time the agency took an arguably
disadvantaging action against complainant by moving an overhead light
directly over complainant's work station.
Applying the standards set forth in Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks,
509 U.S. 502(1993), however, the Commission finds that the agency
met its burden to explain its actions. The agency explained that the
light was moved over the machine where complainant worked because a
study conducted in response to complainant's earlier request for the
installation of toggle switches revealed that the lighting in the area
was not in compliance with Occupational Health and Safety Administration
(OSHA) standards. The agency further explained that all employees
were subject to the requirement to update medical excuses for overtime
exemptions on a monthly basis, and had been for several years prior to
the events at issue.
Complainant adduced no evidence to show that the agency's proffered
explanations more likely than not were pretexts for discrimination.
Therefore, the Commission AFFIRMS the FAD pertaining to Complaint 2.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final agency decisions
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
April 25, 2002
__________________
Date
1Some of the handwriting in the doctor's note is illegible. Complainant's
supervisor contended the word was �could.� On appeal, complainant
submitted a note from the same doctor's office written in June 1999.
It indicated that the word in question was �would.�
2The lighting standards applied are contained in an agency maintenance
bulletin. Although there are references to �OSHA [Occupational Safety
and Health Administration] standards� in the affidavits of complainant
and the CFU Supervisor, the maintenance bulletin does not identify the
source for the standards contained therein.
3It is unclear whether complainant is referring to the migraines, the
fibromyalgia, or both.
4In September 1998, complainant's supervisor affirmed that in the prior
few months complainant had few migraine episodes even though the lighting
did not change. According to the supervisor, complainant stated her
medicine changed because she was having migraines at night.
5The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
6In approximately May 1998, complainant suggested that her grip on her
car steering wheel was not strong. There is no medical evidence that
lighting is related to this matter.