01A14204
06-07-2002
Griselda D. Young, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Griselda D. Young v. United States Postal Service
01A14204
06-07-02
.
Griselda D. Young,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14204
Agency No. 4G-780-0030-00
Hearing No. 360-AO-8503X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Window Clerk at the agency's
Austin, Texas facility, filed a formal EEO complaint on January 20, 2000,
alleging that the agency discriminated against her on the bases of race
(Caucasian), national origin (Spanish American), disability (cervical
and trapezius strain/carpel tunnel syndrome)<1>, age (D.O.B. 5/12/57),
and reprisal (for her prior Title VII EEO activity) when: (1) she was
forced to take a permanent rehabilitative position on September 24, 1999,
prior to reaching maximum medical improvement (MMI) for both of her work
related conditions; and 2) she was denied requested schedule changes for
October 20, 24, 27, and 29, 1999. More specifically, complainant objected
to the change in her work hours from 6:30 a.m. - 3:30 p.m. to 8:30 a.m. -
5:30 p.m. Complainant also asserted that five other co-workers with
work-related injuries were treated more favorably than she in that they
were not forced to take rehabilitative positions. The complaint was
accepted for investigation. The agency's Injury Compensation Specialist
attested that complainant was offered the Modified Clerk position after
the agency was notified by complainant's doctor in April and June 1999
that she had reached MMI with her work-related cervical and trapezius
strain and that the medical restrictions were permanent. During the
investigation, complainant amended her complaint and claimed that the
agency discriminated against her after she underwent carpel tunnel
release surgery when she was reassigned to another facility that was
forty-five minutes from her home without discussing the change with her.
The agency investigated this claim, and the agency's Injury Compensation
Specialist stated in her affidavit that complainant had to be reassigned
to another duty station because complainant's regular duty station was
already accommodating seven other injured employees, and did not have a
position available that matched the complainant's increased restrictions.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of disability discrimination in that she did not show that she
had an impairment or was perceived as having any impairment which
substantially limited any major life activity. The AJ then found that
while complainant established prima facie claims of race, color, sex,
age, national origin, and reprisal discrimination, she did not establish
that more likely than not, the agency's articulated reasons were pretexts
to mask unlawful discrimination. However, the AJ's decision did not
address complainant's claim that she was reassigned to another facility.
The agency's final order implemented the AJ's decision.
On appeal, complainant reiterated her arguments made in the underlying
complaint and contended that her doctor approved her modified �job offer�
because he did not understand the intent of the agency's terminology and
she was unable to discuss the impact of the job offer with him because
the agency contacted him without her knowledge and led him to believe
that she had already approved the offer and was merely awaiting his
medical clearance. Complainant also contended that after returning to
work from her carpel tunnel surgery in approximately June 2000, she
was displaced and required to commute a total of fifty miles a day to
work, whereas other employees were asked whether they wanted to leave
the station. <2> The agency requested that we affirm its final decision.
FINDINGS AND ANALYSIS
Summary Judgment
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 does not
sit as a fact finder. Id. 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. A disputed issue of fact is
genuine if the evidence is such that a reasonable fact finder could find
in favor of the non-moving party. Celtotex v. Carett, 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. If a case can only be resolved by weighing conflicting evidence,
summary judgment is not appropriate. In the context of an administrative
proceeding under Title VII, an AJ may only properly consider summary
judgment after there has been adequate opportunity for development of the
record. Although complainant claimed that there were material facts in
dispute, upon review, we find that the facts were in fact not material.
Therefore, the Commission finds that the grant of summary judgment was
appropriate, as no genuine dispute of material facts existed.
Reasonable Accommodation
In her complaint, complainant asserts that she was forced to accept a
rehabilitative position which resulted in a change in her scheduled work
hours. Section 501 of the Rehabilitation Act prohibits discrimination
on the basis of disability and requires agencies of the Federal
government to make reasonable accommodation to the known physical, or
mental limitations of qualified employees with disabilities, unless
the agency can demonstrate that accommodation would prove to be an
"undue hardship." 29 C.F.R. � 1630.9 (a). In this case we will assume,
arguendo, that complainant is disabled.
Reasonable accommodation includes modifications or adjustments to
the work environment, or to the manner or circumstances under which
the position held or desired is customarily performed, that enable a
qualified individual with a disability to perform the essential functions
of that position. 29 C.F.R. � 1630.2(o)(1)(i)(ii). This may include,
but is not limited to, making facilities accessible, job restructuring,
part-time or modified work schedules, reassignment to a vacant position,
acquisition or modifications of equipment or devices, appropriate
adjustment or modification of examinations, training materials or
policies, and provision of qualified readers or interpreters. 29 C.F.R. �
1630.2(o)(2). Here, the agency stated that it offered complainant a
Modified Clerk position after being notified by complainant's doctor
she had reached MMI with her work-related cervical and trapezius strain
and that her medical restrictions were permanent. The record reveals
that complainant's medical restrictions left her unable to perform the
essential duties of her bid position as a Window Clerk. Further, the
record shows that the agency's Injury Compensation Specialist worked with
complainant's physician and her supervisor to provide a rehabilitative
position which did not violate complainant's medical restrictions.<3>
The record shows that there was no work available in complainant's
regular tour or craft when the modified offer was made, and that the
offer was made in compliance with the agency's �priority choice� plan
for the assignment of rehabilitative offers and the recommendations of
complainant's physician. (Report of Investigation p. 44).
While complainant contended on appeal that she was �forced� to take
the rehabilitation job offer, she produced no evidence to show that she
was qualified to perform the essential duties of her regular position,
even with an accommodation, or that her doctor's recommendations were
not considered in crafting a modified assignment for her. Further,
while complainant identified other co-workers whom she contends were
treated more favorably than she, the evidence does not support such a
conclusion as complainant's co-workers were also offered rehabilitative
positions when they reached MMI.
Disparate Treatment
Complainant also claims that because of her sex, race, color,
age, national origin, disability and reprisal, she was assigned a
rehabilitative position and later denied changes to her schedule. Such
claims are properly analyzed under the three-tier order and allocation
of proof as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). 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. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
This 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. United States Postal Serv. Bd. 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 Serv., EEOC Request No. 05900467 (June
8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
We find that even assuming arguendo that complainant established prima
facie cases of sex, race, color, age, national origin, disability,
or reprisal discrimination when she was assigned a rehabilitative
position and later denied changes to her schedule, the agency articulated
legitimate non-discriminatory reasons for its actions. While complainant
asserted that her comparators were treated more favorably than she, we
note that the record supports the attestation of the Injury Compensation
Specialist that three of the injured comparators complainant identified
had not yet reached MMI at the time the instant complaint was filed.
Consequently, the comparators did not need rehabilitation offers.<4>
Further, the record shows that, like complainant, the other two
comparators were offered rehabilitative offers when it was determined
that their medical restrictions were permanent. We also note that when
complainant was originally offered the position in September 1999, it was
within her craft and within her same duty station, with the only change
being her reporting time. Accordingly, we find that complainant has
not sustained her burden to show that the agency's articulated reasons
for it actions were pretextual.
As to complainant's claim that she was denied requested schedule changes
for October 20, 24, 27, and 29, 1999, the agency articulated legitimate,
non-discriminatory reasons for its actions, which complainant failed
to show were pretextual. The record showed that complainant's change
of schedule request was denied because she provided no justification
for the request. Further, the record showed that when complainant had
justified similar requests in the past, they were approved.
On appeal, complainant contended that her doctor approved her modified
job offer because he did not understand the intent of the agency's
terminology. Complainant also contended that after returning to work from
her carpel tunnel surgery in approximately June 2000, she was displaced
and required to commute a total of fifty miles a day to work, whereas
other employees were asked whether they wanted to leave the station.
First, we note that complainant failed to introduce any evidence from
her doctor to support her contention that he was unfamiliar with the
agency's terminology. Further, the record shows that complainant's
doctor reviewed the modified job offer and requested changes to better
suit complainant's medical restrictions, including consecutive days off,
and that the agency incorporated these changes in its final offer.
We next address complainant's claim that she was reassigned to another
facility without being asked if she wanted to leave. While the AJ did
not specifically address this issue in her decision, we find that after
a careful review of the record, there is no material fact in dispute as
to this reassignment and that there is sufficient evidence in the record
to make a finding. The record shows that due to the number of limited
duty employees temporarily assigned to the facility, complainant had
to be reassigned to another facility as there was insufficient work
available at her own facility to satisfy her medical restrictions.
Further, the Injury Compensation Specialist indicated in her affidavit
that when the employee's facility was unable to accommodate the injured
worker either because of the severity of the restrictions or lack of work
within the restrictions, the Manager of Customer Service Operations was
consulted to determine which facilities would be available to provide
work fitting the employees needs. The Specialist also indicated that
the Federal Employee's Compensation Act requires that the new facility
should be within 50 miles from the employee's normal duty station.
No evidence showed that the agency failed to follow this practice.
We also note that this was a separate reassignment effort resulting
from her new carpel tunnel restrictions, and occurred some nine months
after complainant was originally offered the modified position based on
her reaching MMI for her cervical and trapezius strain. Complainant has
not sustained her burden to show that the agency's articulated reason
was pretextual. Therefore, we find that complainant failed to show by
a preponderance of the evidence that the agency restricted her from her
career craft position in that the agency only offered her the modified
position after it was determined that she would have a permanent medical
restriction and would no longer be able to perform the essential duties
of her bid position.
Accordingly, after a careful review of the record, the Commission
finds that the AJ's findings of fact are supported by substantial
evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
disability. We discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including complainant's contentions
on appeal, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____06-07-02_____________
Date
1Complainant suffered from cervical and trapezius strain, a work
related injury that occurred in January 1998 and received a limited duty
assignment while she recuperated from her injury. The record also shows
that complainant was also recuperating from a carpel tunnel syndrome
injury but had not yet reached maximum medical improvement.
2This appears to relate to a subsequent job offer that was made to
complainant.
3Complainant was restricted in her ability to push and pull more than
forty pounds or lift more than 30 pounds. Complainant also could not
climb for more than 15 minutes per day, needed a 5-10 minute break each
hour, and could only do assignments which allowed for intermittent
sitting, standing and walking. Complainant's doctor indicated that
complainant's condition would continue to improve over time and that
she could work an eight hour day. These restrictions appeared to apply
to complainant's cervical and trapezius neck strain and to her carpel
tunnel injury.
4One co-worker reached MMI in November 1999 and was offered and accepted
a rehabilitative position.