0120090602
05-20-2009
Frances E. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frances E. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090602
Agency No. 1J-607-0022-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 16, 2008 final decision concerning
her equal employment opportunity (EEO) complaint claiming employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a Full Time Mail
Handler at the agency's Cardiss Collins Processing and Distribution Center
(P&DC) in Chicago, Illinois.
On August 23, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to harassment
and a hostile work environment on the basis of disability (DVT,
Hemorrhage Hematoma, Pulmonary Embolism, Rotator Cuff Bursae, Right
Shoulder Tendonitis, Right Elbow Lymphoma, Matic Torricellis, Massive
Heart Attack and Cataracts) when:
she was sent home on March 27, 2007 and denied reasonable accommodations
when her request for FMLA leave was denied. Additionally, complainant
contended that on unspecified dates, she was worked outside her
restrictions; she was issued an Options Letter and not allowed to
communicate with the Lead Supervisor; she was informed daily that
she could not be sent home; she was assigned to a unit where she was
isolated from others and no one was allowed to talk to her; and she was
not accommodated with a chair.1
After the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
On November 4, 2008, the AJ issued an order, dismissing the formal
complaint from the hearing process. In his Order, the AJ concluded that
because complainant failed to show cause for her failure to adequately
respond to the agency's discovery request and her failure to cooperate
with discovery, file timely pre-hearing submissions and follow the
AJ's orders, he remanded the case to the agency for issuance of a final
decision. Therefore, the agency issued the instant final decision on
December 16, 2008.
In its December 16, 2008 final decision, the agency found no
discrimination. Specifically, the agency found that complainant
did not establish a prima facie case of disability discrimination
because she failed to show that she was substantially limited in a
major life activity.2 The agency concluded that complainant failed to
show that she was a qualified individual with a disability as defined
by the Rehabilitation Act. The agency further found that assuming,
arguendo, that complainant established a prima facie case of disability
discrimination, management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext.
Regarding the harassment claim, the agency found that the evidence in
the record did not establish that complainant was subjected to harassment
based on prior protected activity. Specifically, the agency found that
the alleged harassment was insufficiently severe or pervasive so as to
create a hostile work environment.
Complainant's immediate supervisor (S1) stated that he was aware of
complainant's work restrictions, but that he was not aware of her
specific medical conditions. S1 stated that complainant "would provide
me a copy of her condition and restrictions that I would forward to
the FMLA coordinator." S1 further stated that complainant "did not
request reasonable accommodation from me." S1 stated that on March 27,
2007, the Manager, Distribution Operations (MDO) brought complainant to
him and informed him "there was no work for the complainant to do per
her restrictions. She needs to go home, see her doctor and bring back
an updated medical statement so that we (the Postal Service) can find
work that would be comparable to your restrictions." S1 stated that
complainant was informed that "she could use any leave that she wants
to use, but to call in the next day so the Postal Service would have
some type of idea of how long she would be off work."
S1 stated that during the relevant time, he had no knowledge of any
reasonable accommodation "approved or disapproved by or for [complainant].
I was not present if or when the request was made." S1 stated that in
regard to complainant's claim that she was isolated from others and no
one was allowed to talk to her, the unit that complainant "was in is
across from the machine that she was prepping mail for. By me working
on the first floor and the complainant working on the third floor,
I am unaware if anyone told her that she couldn't talk to anyone.
There was at one time more [employees] than the complainant working in
that area." S1 stated that in regard to complainant's claim that she
was not accommodated with a chair, he saw complainant "working in the
unit on the third floor, she had a chair. When this accommodation was
taken away from her I have no knowledge of."
MDO stated that during the relevant time, she did not subject complainant
to harassment. MDO further stated that she became aware of complainant's
restrictions in February 2007 when she became the District's Coordinator
for Light and Limited Duty. MDO stated that complainant provided medical
documentation to her and S1 every 30 days. MDO stated that on March 27,
2007, she sent complainant home as a result of the restrictions submitted
by her physician. Specifically, MDO stated that complainant's duty stat
report reflected that complainant was "restricted to Zero lifting and
there was no work at all that had zero lifting restrictions." MDO stated
that complainant was sent home off the clock "until she could obtain
an evaluation stating she could lift to some degree so that we could
provide her with productive work. With no lifting allowed at all,
there was not work for the complainant within those restrictions."
MDO stated that complainant did not request reasonable accommodation,
but that MDO nevertheless made a request for reasonable accommodation
because complainant "could not perform the essential function of her
job assignment." MDO stated in regard to complainant's claim that she
worked outside of her restrictions, she was not aware of complainant
"ever working outside of her medical restrictions. I have observed
[Complainant] working her light duty assignment on many occasions and I
have never seen her working outside of her restrictions." MDO stated that
complainant's restrictions were as follows: no pushing/pulling/carrying
over 15 pounds, no lifting over 15 pounds, no reaching above head and
must ambulate every 90 minutes. MDO stated that complainant's light
duty assignment was "prepping Flat mail pieces into an ERGO cart while
seated. The Flat mail pieces weigh less than 15 lbs." MDO stated that
complainant was later assigned to the Nixie Unit "because we no longer
needed a prepping operation. In the nixie operation [complainant]
is repairing letter mail and flat mail pieces."
Further, MDO stated complainant's Options Letter dated July 24, 2007
was mailed to her address of record on July 25, 2007. Specifically,
MDO stated she requested that complainant meet with the District
Reasonable Accommodation Committee (DRAC) in June 2007. MDO stated
that following the June 20, 2007 meeting, DRAC issued a decision dated
July 24, 2007. MDO stated that complainant's request for reasonable
accommodation was denied "because the committee was not able to find a
reasonable accommodation within the complainant medical restrictions."
MDO stated that complainant was given the following four options:
"1. You may apply for reassignment, if you qualify and (reassignments
are based on availability) 2. You may apply for disability retirement,
if you qualify. 3. You may apply for regular retirement, if you qualify;
and 4. You may voluntarily terminate your position with the Postal
Service."
With respect to complainant's claim that she was told she could not speak
to her Lead Supervisor, MDO stated "I do not recall such an incident,
but I do recall having a conversation with [S1] stating that he needed
to go ahead to place the complainant off the clock because we could not
provide her with work within her restrictions; that is, work that had zero
lifting." Regarding complainant's claim that she was assigned to a unit
where she was isolated from others and no one was allowed to talk to her,
MDO stated "we do not have any operations were employees are isolated.
I have no knowledge of other employees not being allowed to talk to her."
Regarding complainant's claim that she was not accommodated with a chair,
MDO stated complainant has been accommodated with a chair "for the entire
time that she has been on light duty. The Light Duty Management Report
indicates that she has been working in a Light Duty status since 1992."
Another Manager, Distribution Operations (MDO2) stated that she was
assigned to the Cardiss Collins P&DC at the time of the incidents cited
in complainant's complaint. MDO2 stated that she was aware complainant
had work limitations "as she was a Light Duty employee; however,
I have no specific knowledge of the complainant's medical condition."
MDO2 stated that during the relevant time, the Cardiss Collins P&DC "was
undergoing automation enhancements which eliminated some of the manual
functions at the facility and subsequently impacted employees who had
been assigned manual tasks as the result of their work limitations."
MDO2 stated that she managed the area and prepping operation where
complainant was assigned. MDO2 stated that there was a significant
initiative "to review the work restrictions and job assignments for all
Light Duty employees in the facility. The purpose of this initiative
was to ensure the Light Duty employees were performing productive work;
they were working within their limitations; and all medical documentation
was up to date and supported their Light Duty assignments." MDO2 stated
that the initiative was also implemented in an effort to reduce the
light duty work force and allow them the opportunity to return to full
duty without restrictions. MDO2 stated that complainant "was not the
only employee whose medical documents and work assignments were being
closely scrutinized; it was every Light Duty employee."
With respect to complainant's claim that she was subjected to harassment,
MDO2 stated complainant "did complaint to me about the alleged harassment
(in general), she believed was occurring through this process; however,
other than general conversations, no formal actions were merited."
On appeal, complainant contends that her rights "have been violated and
are still being violated to this day." Complainant states that she made
an offer to the agency attorney but "he refused and stated he could he[lp]
me with my workman compensation claim and me sure I got it processed
it still has not been processed." Furthermore, complainant states
"I am requesting that no sanction be placed on me because I explain to
[a named agency attorney] that my husband had developed cancer."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
As an initial matter, we find that complainant, on appeal, has not
provided any persuasive argument regarding the propriety of the agency's
finding of no discrimination. The Commission determines that the agency
conducted a thorough investigation.
Therefore, after a review of the record in its entirety, including
consideration of all statements on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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
May 20, 2009
__________________
Date
1 The record reflects that when complainant submitted a PS Form 2564-C
wherein she withdrew the claim of not being accommodated with a chair.
The record further reflects that in her affidavit, complainant clarified
that she was not forced to work outside her restrictions, but that she
was only told to be careful.
2 The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
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0120090602
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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