01a50127
04-12-2005
Josephine S. Fuerte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Josephine S. Fuerte v. United States Postal Service
01A50127
4/12/05
.
Josephine S. Fuerte,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50127
Agency No. 1E-981-0070-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 decision.
The record reveals that during the relevant time, complainant was
employed as a Mail Processing Clerk at the agency's Seattle Processing &
Distribution Center facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on November 21, 2003, alleging
that she was discriminated against on the bases of race (Asian Pacific),
national origin (Phillipino), sex (female), disability (chronic back
pain), and age (D.O.B. 4/23/53) when:
(1) on August 4, 2003, and ongoing, she was threatened with termination;
and
on August 4, 2003, she was removed from the facility for working unsafely
by not resting on her rest bar properly.
The record reveals that by letter dated February 6, 2004, the agency
dismissed Issue 1 above for failure to state a claim. Specifically,
the agency found that complainant was not aggrieved by allegedly
being threatened with termination. The agency accepted the second
issue for investigation. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed t establish
a prima facie case of discrimination on the basis of age, race sex or
national origin because she failed to identify any similarly situated
individuals outside of her protected classes who were treated more
favorably under similar circumstances. As for her claim of disability
discrimination, the agency found complainant failed to establish that
she is substantially limited in any major life activity.
Assuming complainant established a prima facie case of discrimination,
the agency found it articulated a legitimate, nondiscriminatory reason for
its action. As an initial matter, the agency disputes that complainant
was ever terminated. Rather, the agency maintains that complainant
and the Manager of Distribution Operations (MDO) had a difference of
opinion as to the height at which complainant's rest bar should be kept.
According to the MDO, complainant asked him on August 4, 2003 if she could
keep her rest bar in the lowest position, so she could use it as a seat.
The MDO averred that he denied complainant this request because it was
a safety violation. According to the MDO, complainant then refused
to come to the conference room to discuss the matter. He added that
he placed complainant on emergency suspension for insubordination, and
instructed her to come to work the following day. Complainant had not
been back to work and had since produced medical documentation supporting
her indefinite sick leave.
The agency also analyzed the claim as a failure to accommodate.
The agency found that complainant never asked the MDO if she could
use the rest bar as an accommodation. As such, complainant failed to
establish that the agency failed to accommodate her disability.
On appeal, complainant contends that the USPS/APWU Contract Administration
Manual states that it is appropriate to use the rest bar in the seated
position in order to accommodate a medical condition. The manual cites a
1983 arbitration award as the authority for this proposition. In response
to complainant's appeal, the agency requests that we affirm its FAD.
To establish a prima facie case of disability discrimination under
either a disparate treatment and/or a failure to accommodate theory,
the 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 personnel action under circumstances
giving rise to an inference of disability discrimination and/or denied
a reasonable accommodation. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001).
Assuming, arguendo, that complainant is an individual with a disability,
and applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), we find that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that the preponderance of the evidence reveals that complainant
argued with her supervisor as to whether she could use the rest bar in
the seated position. When he asked her to join him in the conference
room, she refused and was placed on suspension. Complainant does not
dispute the MDO's version of the events. Further, there is no record
of her termination, as she claims.
As for her claim of failure to accommodate, we note that the agency had
been accommodating complainant's back injury by placing her in a light
duty position since 1995 where she only cases mail. Although the record
contains an addendum to complainant's restrictions which includes the
use of a rest bar in the seated position, it is dated only two days prior
to the incident in question. The MDO denied that complainant was using
the rest bar as an accommodation. Accordingly, we are not persuaded
that the MDO was aware of complainant's need to use the rest bar as an
accommodation of her disability.
Furthermore, even if complainant had informed the MDO of her need to
use the rest bar as an accommodation, when she became insubordinate,
she caused the interactive process to fall apart. Complainant has
since been out of work since the events of August 4, 2003. She has not
argued that she has attempted to contact the agency to engage in the
interactive process in order to find an appropriate accommodation for
her disability. Accordingly, we do not find that the agency failed to
accommodate complainant's disability.
As for her claims of discrimination based on race, age, national origin
and sex, we find complainant failed to establish a prima facie case of
discrimination, and failed to establish that the agency's reasons for its
actions were a pretext for discrimination. Finally, the agency's decision
to dismiss the first issue for failure to state a claim is affirmed.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
4/12/05
Date