01A04678
03-05-2003
Julie D. Bearfield, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Julie D. Bearfield v. United States Postal Service
01A04678
03-05-03
.
Julie D. Bearfield,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04678
Agency Nos. 4G-720-0103-97
4G-720-0079-98
4G-720-0025-99
Hearing Nos. 250-99-8058X
250�99-8151X
250-99-8233X
DECISION
INTRODUCTION
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.
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.
ISSUES PRESENTED
The issues presented herein are whether complainant has established
that the agency discriminated against her, as indicated below, when (1)
she was instructed to submit to a fitness-for-duty examination after
her personal doctor had requested that her overtime be limited to no
more than four hours per week; (2) on February 6, 1998, her bid job
hours were changed from 0700-1550 to 0500-1350 and later to 0900-1700;
and (3) on November 11, 1998, she was not allowed to return to her bid
reporting schedule after her injury compensation claim was accepted.
BACKGROUND
The record reveals that complainant filed Complaint Nos. 4G-720-0103-97,
4G-720-0079-98 and 4G-720-0025-99 on August 29, 1997, August 7, 1998
and January 16, 1999, respectively. In Complaint No. 4G-720-0103-97,
complainant alleged that she was discriminated against due to her sex
and disability (fatigue and stress) when she was instructed to submit to
a fitness-for-duty examination after her personal doctor had requested
that her overtime be limited to no more than four hours per week.
In Complaint No. 4G-720-0079-98, complainant alleged that she was
discriminated against due to her race (Black), disability (overuse
syndrome)<1> and retaliation (prior EEO activity) when, on February 6,
1998, her bid job hours were changed from 0700-1550 to 0500-1350 and
later to 0900-1700. In Complaint No. 4G-720-0025-99, complainant alleged
that she was discriminated against due to her race, disability (neck,
wrist and carpal tunnel syndrome) and retaliation (prior EEO activity)
when, on November 11, 1998, she was not allowed to return to her prior
bid reporting schedule after her injury compensation claim was accepted.
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, however, issued a decision without a hearing, finding
no discrimination. The agency's final order implemented the AJ's decision.
Complaint No. 4G-720-0103-97
The record indicates that complainant began working for the agency on
November 8, 1986. At the time of the alleged discrimination, she worked
as an Automation Clerk at the agency's Southside Station in Little Rock,
Arkansas. On December 6, 1996, complainant provided her supervisor,
A-1, with a statement from her doctor indicating that her overtime be
limited to four (4) hours per week. The statement made no reference to
a diagnosis, prognosis or complainant's impairment. Complainant did
not discuss her condition with A-1; however, she indicated that her
impairment was so serious that her doctor suggested that she stop working.
A-1 forwarded a request to the Postmaster, A-2, for her agreement that
complainant be given a fitness for duty examination. According to A-1,
his decision was based on the medical statement from complainant's
doctor and the lack of information from complainant. A-1 also attached
complainant's attendance records for the prior 2 years and indicated
that her doctor's request �[f]alls closely on the heals of what seems
to be a rash of request[s] to get out of working overtime in CFS.� The
record indicates that the agency's doctors found, in pertinent part, that
complainant was medically qualified to perform the essential functions
of her position at the time of her examination.
The AJ found that complainant failed to establish prima facie cases
of discrimination based on sex or race because she failed to identify
similarly situated individuals who had work restrictions or who had made
similar requests to A-1, but who were not referred to fitness-for-duty
examinations. The AJ also found that complainant failed to establish
that she was within the protection of the Rehabilitation Act.
Complaint No. 4G-720-0079-98
In November 1997, complainant claimed to have difficulty in operating a
standard keyboard. She filed an OWCP claim, which was denied on January
27, 1998. On February 4, 1998, A-2 offered complainant a limited
light duty assignment which began at 5:00 A.M. The tour complied
with complainant's medical restrictions, which allowed keyboarding
for a half hour at a time with a thirty minute break in-between.
Complainant declined the offer on February 6, 1998, and was placed on
administrative leave pending the scheduling of a disciplinary hearing.
On February 10, 1998, a union steward asked A-2 to change complainant's
light duty assignment so that it did not begin at 5:00 A.M., because
complainant was a single parent and had no way of getting her kids to
day care, which started at 6:00 A.M. A-2 granted the union's request
and changed complainant's schedule to Tuesday, Wednesday, Thursday
and Friday from 9:00 A.M. to 5:30 P.M.; and Saturday from 7:30 A.M. to
4:00 P.M. Complainant accepted the light duty offer on February 11,
1998, but sought EEO counseling because she was not allowed to return
to her prior work schedule of 7:00 A.M. to 3:30 P.M.
Complaint No. 4G-720-0025-99
Complaint filed another claim for OWCP benefits, which was accepted for
consideration on November 4, 1998. She was extended an offer of limited
duty as a modified CFS Clerk on November 9, 1998, which she accepted.
On the offer form, however, she requested that she be allowed to return
to her regular work schedule of 7:00 A.M. to 3:30 P.M. When she was
not given her former shift hours, the complainant proceeded to file
a complaint.
With respect to Complaint Nos. 4G-720-0079-98 and 4G-720-0025-99, the AJ
found that the agency had a legitimate nondiscriminatory reason for its
work schedule assignment, i.e., A-2 took into consideration the needs of
the agency and complainant's work restrictions. Also, A-1 indicated that:
[d]ue to machine availability in CFS, 0700 to 1500 is the busiest time
in the office. This is the time when the office needs clerks who can key
from 1 � to 2 hours continuously throughout their tour. It is difficult
to schedule [complainant] into regular rotations due to her physical
limitations (can only key 30 minutes at a time).
Finding no evidence of pretext, the AJ found that the hours assigned to
complainant on February 6 and 11, 1998, were not because of her race,
disability or in reprisal for engaging in previous EEO activity.
ANALYSIS AND FINDINGS
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. Celotex v. Catrett, 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.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission finds that the AJ correctly
determined that there were no genuine issues of material fact and that
summary judgement was appropriate. Furthermore, we find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Construing the evidence
to be most favorable to complainant, we find that she failed to present
evidence that the agency's actions, i.e., the changes made to her duty
hours and the failure to restore her original duty hours, were motivated
by discriminatory animus toward complainant's protected classes.<2>
Consequently, we discern no reason to disturb the AJ's decision as to
these claims.
We note, however, that the AJ's decision did not use the correct standard
of review with respect to the agency's order that complainant submit to a
fitness-for-duty examination (Complaint No. 4G-720-0103-97). Instead of
determining whether the referral was job-related and consistent with
business necessity, the AJ erred by utilizing a disparate treatment
analysis. Therefore, the Commission will address this issue below.
Medical Examination
The Rehabilitation Act was amended in 1992 to apply the standards of the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.<3>
The Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquiries or require medical
examinations of employees only if it is job-related and consistent with
business necessity. 29 C.F.R. �� 1630.13(b), .14(c).<4> Generally, a
disability-related inquiry or medical examination of an employee may be
"job-related and consistent with business necessity" when an employer
"has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired
by a medical condition; or (2) an employee will pose a direct threat due
to a medical condition."<5> Enforcement Guidance - Disability-Related
Inquiries, at 15-16. It is the burden of the employer to show that its
disability-related inquiries and requests for examination are job-related
and consistent with business necessity. Id. at 15-23. Because the
restrictions on employers with regard to disability-related inquiries
and medical examinations apply to all employees, and not just to those
with disabilities, it is not necessary to inquire whether the employee
is a person with a disability. Enforcement Guidance - Disability Related
Inquiries, p. 3. Instead, we focus on the issue of whether the agency's
order that complainant undergo a Fitness-for-Duty examination was lawful.
Complainant submitted to A-1 a statement from her doctor indicating that
she could only work four hours of overtime each week. The statement,
however, did not mention a physical or mental impairment of any nature
or duration. Furthermore, complainant told A-1 that her doctor stated
that her medical condition was such that she might have to quit her
job. Complainant would not discuss any other details about her condition.
We find that A-1 had a reasonable belief, based on objective evidence,
that complainant's ability to perform essential job functions was impaired
by her medical condition or that there was a direct threat to her safety
due to her medical condition.<6> Upon review of the record and the AJ's
findings of fact, we conclude that the agency met its burden of showing
that the decision to order complainant to undergo an examination was
job-related and consistent with business necessity. Accordingly, we
find that the examination was not a violation of the Rehabilitation Act.
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
___03-05-03_______________
Date
1Complainant's affidavit appears to characterize �overuse syndrome� as
a type of depression.
2In reaching the above decision, we assumed, for analytical purposes
only, that complainant was within the protection of the Rehabilitation
Act as alleged.
3See 29 U.S.C. � 791(g); See also 29 C.F.R. Part 1630 (EEOC's ADA
regulation); 67 Fed. Reg. 35732 (5/21/02)(updating Section 501 rule in
accordance with 1992 amendment.)"
4See EEOC Enforcement Guidance on Disability-Related Inquiries and
Medical Examinations of Employees Under the Americans with Disabilities
Act (Enforcement Guidance - Disability Related Inquiries), No. 915.002
(July 26, 2000); Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement
Guidance on Preemployment Disability-Related Questions and Medical
Examinations (Enforcement Guidance - Preemployment) (October 10, 1995).
5�Direct threat" means a significant risk of substantial harm that cannot
be eliminated or
reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r).
6In reaching the above decision, we placed great emphasis on the fact
that complainant told A-1 that her doctor opined that she might have to
quit her job due to her medical condition, but then refused to provide
him with any details.