01986570
11-17-2000
Jenell Foster, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jenell Foster, )
Complainant, )
) Appeal No. 01986570
) Agency No.1G-787-0036-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning her
complaint of unlawful employment discrimination in violation of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq.,<1> and � 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq. Accordingly, the appeal is accepted in accordance
with 64 Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of age (52), physical disability (post traumatic
cervical, lumbar, and pelvic segmental dysfunction), and reprisal when
she was denied light duty; required to work outside of her limitations;
and later denied overtime when some of her restrictions were lifted.
BACKGROUND
Complainant was a Distribution Clerk at the San Antonio District
Processing and Distribution Center. In July 1997, complainant used a
chair with a back support on it to ease her neck and back problems.
The Acting Supervisor (AS) told complainant that she could only use
the chair if she was on light or limited duty, and gave complainant the
forms to request light duty. On July 28, 1997, complainant requested
a two-week light duty assignment.<2> The request was denied.<3> The
Manager, Distribution Operations (MDO) and AS averred that the request
was denied because complainant's request specified that she could not
reach above her shoulders and there was no work available on complainant's
tour within that restriction.
On August 4, 1997, when complainant reported to work, the MDO instructed
her that in order to continue working, she would have to have some of
her restrictions lifted. The MDO averred that he saw complainant working
the following day and assumed that she had her restrictions lifted.<4>
During the next two weeks, complainant worked more than eight hours per
day on six days.<5> Complainant filed a grievance claiming that she was
forced to work beyond her eight hour per day limitation.<6> Complainant
stated that the MDO then told complainant to go home because he did not
have any work within her restrictions and advised complainant to go back
to her doctor and have him lift the restriction limiting lifting above
the shoulders.
On August 21, 1997, complainant again requested light duty.<7> The
agency approved the request on August 22, 1997.
In her formal EEO complaint, complainant claimed that she was treated
differently than two other employees who each brought in notes from
their doctors. She claimed that management retaliated against her after
she filed a grievance by not allowing her to work or perform duties which
were within her restrictions. She also claimed that after her eight hour
work restriction was lifted, management failed to provide her with the
opportunity to work overtime. The MDO averred that complainant did not
provide any documentation to show that her August 21, 1997 restrictions
were lifted.
The agency issued a final decision finding no discrimination. The agency
found that complainant failed to establish a prima facie case of age
discrimination because she was unable to prove that the agency officials
were aware of or considered her age. The agency decision noted further
that light duty was denied for three other employees, all of whom were
under age 40. Regarding complainant's disability claim, the agency found
that she failed to satisfy the threshold requirement of showing that she
was an individual with a disability as defined by the Rehabilitation Act
because she failed to demonstrate that she had a physical impairment that
substantially limited one or more of her major life activities, that she
had a record of such impairment, or was regarded as having an impairment.
Complainant appealed.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In
an ADEA case, the ultimate burden remains on complainant to demonstrate,
by a preponderance of the evidence, that age was a determinative factor.
Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
This established order of analysis, 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 articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., complainant's July 28,
1997 request for light duty was denied because at that time there was
no work available within the restriction regarding lifting above her
shoulders; on August 4, 1997, the MDO informed complainant that there
was no work within her restrictions and that she could not work unless
her restrictions were lifted, and believed that the restriction was
lifted when he saw her the following day; and the MDO did not provide
complainant with the opportunity to work overtime in late August because
he was unaware at that time that some of her restrictions were lifted.
The burden returns to complainant to demonstrate that the agency's
reasons were a pretext for discrimination, that is, that the agency was
more likely motivated by discriminatory reasons. Burdine, 450 U.S. at
253. Complainant provided no evidence in support of her claim that
the agency's actions were based on her age. The record reveals that
requests for light duty from three other employees, who were under age
40, were not approved because of lack of work within their restrictions.
Complainant fails to prove that she was treated differently than similarly
situated employees based on age, and has not proven that the agency's
articulated reasons were a pretext for discrimination.
To establish a prima facie case of disability discrimination, complainant
must show that: 1) she is an individual with a disability as defined in 29
C.F.R. � 1630.2(g), 2) she is a "qualified" individual with a disability
as defined in 29 C.F.R. � 1630.2(m), and 3) the agency took an adverse
action against her. See Prewitt v. United States Postal Service, 662
F.2d 292 (5th Cir. 1981). Complainant also must demonstrate a causal
relationship between her disabling condition and the agency's reasons
for the adverse action.
EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual with a
disability as one who: 1) has a physical or mental impairment that
substantially limits one or more of that person's major life activities,
2) has a record of such impairment, or 3) is regarded as having such an
impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i) defines "major
life activities" as including the functions of caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
Complainant also must show that she is a "qualified" individual
with a disability within the meaning of 29 C.F.R. � 1630.2(m). That
section defines a qualified individual with a disability as meaning,
with respect to employment, a disabled person who, with or without
reasonable accommodation, can perform the essential functions of the
position in question.
The Commission finds that there is insufficient evidence in the record
to substantiate complainant's claim that she is an individual with a
disability within the meaning of the regulations. The two reports from
the doctor based on her July 10, 1997, examination which severely limited
her work activities, noted that her prognosis could not be determined
at that time. One month later, the doctor decreased all restrictions on
lifting, standing, walking and working, and removed the restrictions on
reaching stooping and bending. His August report listed her prognosis
as �good.� Nothing in these reports or in complainant's requests for
light duty explains how complainant's physical condition substantially
limited one or more of her major life activities.
Further, there is no evidence that complainant had a record of an
impairment or that the agency regarded complainant as an individual with a
disability. The MDO specifically stated that he assumed that complainant's
restrictions were lifted when he saw her at work on August 5, 1997.
Therefore, the Commission finds that complainant fails to prove that
she is an individual with a disability.
Complainant also claims the agency retaliated against her after she filed
a grievance. In order to establish a prima facie case of discrimination
for an allegation of reprisal, complainant must show: 1) that she engaged
in protected activity, e.g., participated in a Title VII proceeding;
2) that the alleged discriminating official was aware of the protected
activity; 3) that she was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Nothing in the record indicates that complainant engaged in any Title
VII or EEOC activity. The record shows that complainant filed a
grievance in August 1997, claiming that on August 4-7 and 11-13, 1997,
the agency forced her to work more than the 8 hours a day listed on
her initial light duty request. Assuming arguendo, that complainant
engaged in protected activity, we find that complainant fails to show
that the agency's articulated reasons for its actions were a pretext
for discrimination based on reprisal. The MDO averred that he believed
complainant's restriction regarding working no more than 8 hours per day
was lifted when he saw her at work on August 4, 1997. He stated that he
knew complainant's July 28, 1997 request was denied and assumed that, as
a union shop steward, she was aware that she could not work with medical
restrictions if a job was not available within those restrictions.
Complainant fails to demonstrate that the MDO's stated reason for
his actions was pretextual. The Commission therefore finds that the
agency did not retaliate against complainant, and further finds that
the agency's determination that complainant failed to establish that
the agency discriminated against her or that its actions were based on
discriminatory animus was correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
November 17, 2000
________________________ _______________________
DATE Frances Hart,
Executive Officer
Executive
Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record contains two undated agency forms completed by complainant's
doctor based on a July 10, 1997 examination. On each, the doctor
diagnosed post traumatic cervical segmental dysfunction, noted that her
prognosis could not be determined at that time, and limited complainant's
work activity to lifting up to 10 lbs; standing and walking 4 hours per
day; working 8 hours per day; reaching to shoulder level; non-continuous
stooping or bending; and pushing and/or pulling containers to 15 to
20 lbs. On one form, the doctor recommended placing complainant in
a light duty assignment for a period of ten days. On the second, the
doctor recommended light duty for 30 days.
3 Complainant received the letter denying light duty, dated July 31, 1997,
on August 1, 1997. The letter contained no explanation for the denial.
4 The MDO stated that complainant was a union steward and knew the
agency's policy.
5 Complainant was on the Overtime Desired List during the entire incident
period.
6 In the grievance, complainant claimed that management denied her request
for light duty and worked her beyond the limitations listed by her doctor.
7 With this request, the doctor diagnosed strain/sprain of the neck and
shoulder, listed complainant's prognosis as �good,� and revised her
previous work limitations to lifting up to 20 lbs, standing and walking
to 8 hours per day, working to 10 hours per day; unlimited reaching,
stooping and bending; pushing or pulling containers to 25 lbs and
suggested if possible that complainant use a chair with a back on it.