0120080232
04-09-2010
Joann K. Chiaro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Joann K. Chiaro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120080232
Agency No. 1B012001007
DECISION
On October 11, 2007, complainant filed an appeal from the agency's
September 12, 2007 final decision 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 VACATES the agency's final decision.
ISSUE PRESENTED
Whether the evidence in the record is sufficient to make a determination
on the merits of complainant's claim of disability discrimination.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Full-Time Mail Handler at the Springfield Bulk Mail Center,
in Springfield, Massachusetts. In November 2003, while off-duty,
complainant was involved in a motor vehicle accident. Subsequent to the
accident, complainant developed chronic bilateral lower back pain, which
was exacerbated by heavy lifting, pushing and pulling. Consequently,
as per her physician's medical restrictions, complainant began working
a schedule consisting of four hours light-duty and four-hours full-duty.
On December 29, 2004, complainant underwent an MRI, which indicated that
she had degenerative disc disease and disc space collapse. On June 1,
2005, complainant's physician recommended that she undergo surgical
intervention; however, due to insurance complications, complainant
was unable to have the procedure performed. The physician noted that
complainant's back pain resulted in an eight percent permanent partial
impairment. Consequently, complainant's physician recommended that she
maintain a continued modified work schedule.
Complainant's physician recommended an extension to her light-duty
schedule status on January 26, 2006; August 10, 2005; September 20,
2005, and February 13, 2007. On each occasion, complainant's medical
restrictions remained essentially the same, which stipulated restricted
lifting/carrying, pushing/pulling, and alternating between sitting,
standing, and walking, in addition to limited climbing and limited
bending.
The "Overtime Desired List" (OTDL) for Quarter 4 (October-December 31,
2006) and Quarter 2 (April 1-June 30, 2007) indicates the Complainant
was on light duty, and requested that she be allowed to work overtime
on her first nonscheduled day (Tuesday), and to be notified of overtime
regardless of her leave status. The record also shows that complainant
volunteered to work on four federal holidays in 2007. According to
payroll records, complainant worked 97.59 hours of Tuesday overtime
during 2006. However, as of November 2007, complainant had not been
allocated any overtime hours.
EEO Complaint
On May 1, 2007, complainant filed an EEO complaint alleging that she was
discriminated against on the basis of disability (herniated disc/back)
when: the agency denied her request to work overtime on November
11, 2006; and, ongoing, she was bypassed to work overtime including
holiday overtime. At the conclusion of the investigation, complainant
was provided with a copy of the report of investigation and a 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 final decision pursuant
to 29 C.F.R. � 1614.110(b).
Final Agency Decision
In its final decision, the agency found that complainant was not
substantially limited in a major life activity, and therefore was not
an individual with a disability pursuant to the Rehabilitation Act.
Moreover, the agency found that management had provided legitimate
non-discriminatory reasons for its actions. Specifically, management
testified that complainant's restrictions prevented her from performing
the essential duties of her position. Further, management stated that
complainant was precluded from many of the overtime opportunities as
the physical requirements of the overtime work frequently exceeded her
restrictions. Consequently, the agency found that complainant failed
to show that the agency's legitimate non-discriminatory reasons for
its actions were a pretext for discrimination. Accordingly, the agency
concluded that complainant had not shown that she was subjected to
employment discrimination.
CONTENTIONS ON APPEAL
On appeal, as presented by her representative, complainant contends that
she was discriminated against on the basis of disability when she was
not selected for overtime work and denied the benefits of working the
"Holiday Schedule" due to her physical disability. Complainant argues
that the agency regarded her as disabled. Complainant also avers that
she was qualified and capable of performing the essential functions
of overtime work. Further, complainant contends that there was in fact
overtime work available that was within her medical restrictions.
The agency did not submit arguments on appeal.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) she is an "individual with a disability;" (2)
she is "qualified" for the position held or desired; (3) she was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Upon review of the record, the Commission finds that the record is
insufficient to allow a determination on the merits of complainant's
complaint. The Commission's regulations and EEOC Management Directive
for 29 C.F.R. Part 1614 (November 9, 1999) (EEO-MD-110), require agencies
to develop an impartial and complete factual record. See 29 C.F.R. �
1614.108(b); EEO-MD-110, Chapter 6. An appropriate factual record
"is one that allows a reasonable fact finder to draw conclusions as to
whether discrimination occurred." Id.
In its final decision, the agency found that complainant had failed
to show that the agency's legitimate non-discriminatory reasons for
its actions were a pretext for discrimination. Specifically, the agency
found, inter alia, that complainant's medical restrictions prevented her
from performing the essential duties required by her position with the
agency. However, the record is entirely bereft of relevant information
regarding the essential qualifications for the Mail Handler position.
Specifically, the record does not include an official job description
for the Mail Handler position, detailing the essential abilities,
qualification, and functions required of this position.
This lack of information is notable, as the final agency decision
found that complainant failed to rebut the agency's legitimate,
non-discriminatory reasons, which included testimony from several agency
officials. These officials testified that complainant's "restrictions
preclude [her] from many overtime opportunities as the physical nature
of the work frequently exceeds [her] limitations." Another official
testified that "employees must have the necessary skills to do the work."
This same official further testified that complainant's restrictions
"prohibit [her] from performing the essential duties of [her] position."
Therefore, specific evidence detailing the Mail Handler job description,
including the essential duties, abilities, and qualifications required
for this position therein, would help to buttress or rebut the agency's
arguments, and is necessary therefore, to the final adjunction of this
appeal. In particular, this evidence should describe the essential
qualifications, abilities and qualifications required specifically for
the overtime work that was available from November 11, 2006 through
December 31, 2007. Further, this evidence should describe the specific
lifting/carrying, pushing/pulling, and the degree of climbing, bending,
walking, standing, and sitting that was required for the overtime work
that was available and allocated to other employees during the November
11, 2006 through December 31, 2007 period and how that work differed
from the overtime duties assigned earlier in 2006.
CONCLUSION
After a careful review of the record, we find that the evidence is
insufficient to allow a determination on the merits of complainant's
complaint. Accordingly, the agency's final decision finding no
discrimination is VACATED. This matter is REMANDED to the agency to
conduct a supplemental investigation pursuant to the ORDER below.
ORDER TO SUPPLEMENT RECORD (B1208)
The agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
The agency shall ensure that the investigator completes a
supplemental investigation within forty-five (45) calendar
days of the date this decision becomes final. The agency shall
ensure that the investigator obtain evidence not inconsistent
with this opinion which may be relevant in determining the
merits of complainant's complaint, including, but not limited
to the official job description for the Mail Handler position,
its essential requirements, including skills, abilities, and
qualifications. This evidence shall also include a specific
description of the skills, qualifications, abilities, including
lifting/carrying, pushing/pulling, and the degree of climbing,
bending, standing, sitting, and walking that was required for
the Mail Handler position, as pertains to the available overtime
work during the period of November 11, 2006 through December 31,
2007 and how that work differed from the overtime duties assigned
earlier in 2006.
Upon completion of the investigation, the agency, within fifteen
(15) calendar days, must provide the complainant with a copy of the
supplemental record and findings and return the completed record to the
Compliance Officer, as referenced below. Within thirty (30) calendar
days after the completion of the investigation, the agency shall then
issue a new final decision in accordance with 29 C.F.R. � 1614.110(b).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
_____4/09/10______________
Date
2
0120080232
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080232