01A02269
02-12-2003
Judy A. Harkness, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judy A. Harkness v. United States Postal Service
01A02269
February 12, 2003
.
Judy A. Harkness,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02269
Agency Nos. 4A-088-1111-96
4A-088-0003-97
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. , 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.
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the agency's Post Office in South Amboy, New
Jersey. Due to a job-related injury on May 26, 1990, complainant was on
limited duty. On June 22, 1996, she was reassigned to the New Brunswick,
New Jersey Post Office to a rehabilitation position as a Modified City
Carrier. On June 28, 1996, her job title was then changed to Modified
Distribution Clerk and assigned to work from 3:30 a.m. to 12:00 a.m.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December 19,
1996, alleging that she was discriminated against on the bases of sex
(female), age (DOB: July 2, 1946), disability (cervical herniated disc),
and/or reprisal (prior EEO activity) when:
On May 28, 1996, she was denied a light duty position in South Amboy;
On May 31, 1996, she was given a modified city carrier position that
was changed to a modified distribution clerk position;
Her start time was changed from 6 or 7:00 A.M. to 3:30 A.M.; and
She was subjected to harassment.
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 a hearing but subsequently withdrew the request in favor of
a final agency decision (FAD).
In its FAD, the agency concluded that complainant failed to establish
her prima facie cases of discrimination. Further, had complainant
established her claims, the FAD found that the agency articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were pretext.
On appeal, complainant contends that the agency was not going to find
a position to which she could have been reassigned in that they were
looking for full-time positions while she could only work a six-hour day.
Complainant also argues that she could have performed the functions of
a carrier with the appropriate reasonable accommodations. Finally, she
claims that the agency improperly reassigned her away from the South Amboy
facility because on January 15, 2000, she was sent back to that facility.
The agency requests that we affirm its FAD.
Disparate Treatment
Essentially, complainant claimed that she was treated differently by the
agency as to claims (1)-(3) due to her sex, age, and prior EEO activity.
A claim of disparate treatment is examined under the three-part 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 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). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. 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. 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. U.S. Postal
Service 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 Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, the Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The Senior Injury Compensation
Specialist (Specialist) averred that the South Amboy Manager informed
him that the agency could not provide complainant with a permanent
modified job assignment because there was no position available within
her limitations. On May 28, 1996, the Specialist found a permanent
modified job assignment at the New Brunswick facility that was within her
limitations. He then noted that the Modified City Carrier position was
changed to a Modified Distribution Clerk position as an administrative
matter. The Specialist stated that the new position started at 3:30
a.m. due to the needs of the agency. Since we have found that the
agency has met its burden, complainant must show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
Upon review, we find that complainant failed to do so.
Reasonable Accommodation
Complainant alleged that the agency failed to provide her with
reasonable accommodations that would have allowed her to perform her
carrier position. Under the Commission's regulations, an agency is
required to make reasonable accommodation to the known physical and mental
limitations of an otherwise qualified individual with a disability unless
the agency can show that accommodation would cause an undue hardship. 29
C.F.R. �1630.9. For purposes of analysis, we assume, without finding,
that complainant is an individual with a disability.
Complainant also must show that she is a "qualified" individual with
a disability within the meaning of 29 C.F.R. � 1630.2(m). The term
�qualified individual with a disability,� with respect to employment,
is defined as a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position held
or desired. 29 C.F.R. � 1630.2(m). Complainant argued that she was
qualified as to her carrier position had the agency provided her with
reasonable accommodations. Upon review we find that complainant has
not established that she is qualified as to the carrier position.
The Postmaster averred that complainant could no longer perform her
carrier functions. During the relevant time, complainant was restricted
from kneeling, bending, standing for more than six hours per day, twisting
for more than one hour per day, reaching for more than one hour per day,
and lifting more than ten pounds. Complainant was also unable to carry
mail for more than three hours or work for more than six hours per day.
She contends that she could have performed the carrier position had she
been permitted to carry mail three hours per day with a special bag with
straps connected to her waist and to case mail with a special platform to
stand on. Upon review of the record, we find that complainant has not
provided any documentation to support her assertion that she could have
performed the duties of a carrier with accommodations. In particular,
it is unclear from the record that complainant would be able to deliver
mail in excess of her lifting restriction with the use of a satchel
that attaches to her waist. Therefore, we find that complainant has not
established that the accommodations would have permitted her to perform
the essential functions of the carrier position.
The term "position" is not limited to the position held by the employee,
but also includes positions that the employee could have held as a
result of reassignment. Therefore, in determining whether an employee
is "qualified," an agency must look beyond the position which the
employee presently encumbers. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities
Act (Enforcement Guidance - Reasonable Accommodation), No. 915.002
(revised October 17, 2002); see also Interpretive Guidance on Title I
of the Americans With Disabilities Act, Appendix. to 29 C.F.R. Part
1630.2(o). Accordingly, we find that the agency properly consider
reassigning complainant. The Specialist stated that there were no
positions available at the South Amboy facility within her limitations.
Therefore, the agency reassigned her to the New Brunswick facility
to a Modified City Carrier position which was within her limitations.
The agency changed the name of complainant's position pursuant to their
interpretation of an arbitration award. Therefore, we find that the
agency has provided complainant with a reasonable accommodation.
Harassment
In her affidavit, she stated that since her injury on May 26, 1990,
she has been subjected to constant harassment. She argued that the
incidents raised in claims (1)-(3) were part of the alleged harassment.
In order to establish a claim of harassment under those bases, the
complainant must show that: (1) she belongs to the statutorily protected
classes and/or engaged in prior EEO activity; (2) she was subjected to
unwelcome conduct related to her membership in those classes and her
prior EEO activity; (3) the harassment complained of was based on age,
sex, disability and/or prior EEO activity; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers
v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001);
Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's
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).
Upon review of the record, we find that complainant failed to establish
that the alleged harassment occurred because of her sex, age, and/or
prior EEO activity. As to her claim of harassment due to her disability,
we find that complainant failed to show that the alleged incidents
taken as a whole were severe or pervasive enough to establish a claim of
harassment. Therefore, upon review of the record, the Commission finds
that complainant has not shown that she was subjected to harassment as
alleged in her complaint.
CONCLUSION
Accordingly, 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 agency's
final decision.
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
February 12, 2003
__________________
Date