0120081248
04-09-2010
Karen L. Gerolami, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karen L. Gerolami,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081248
Hearing No. 520-2006-00446X
Agency No. 4B-060-0015-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 11, 2007, final decision (FAD)
concerning her equal employment opportunity (EEO) complaint alleging
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.
Complainant contacted an EEO counselor on December 5, 2006, and
filed a formal complaint on August 30, 2007. She alleged that the
agency, through her supervisor, the Postmaster (PM) and the Injury
Compensation Specialist (ICS), discriminated against her on the bases
of sex (female) and disability (hands, leg) when she was harassed and
subjected to a hostile work environment including, but not limited to:
(a) since November 22, 2006, management attempted to force her to accept
a Rehabilitation Job Offer (JO); and (b) she was denied upward mobility.1
Acceptance of Investigation, March 29, 2007. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Following receipt of agency discovery, however, she withdrew her request
on October 24, 2007, and the AJ remanded the case to the agency for a
final agency decision (FAD). AJ's Dismissal Order (November 29, 2007).
The agency issued a FAD, finding that it did not discriminate against
complainant.
BACKGROUND
Complainant was employed as a Rural Carrier Associate (RCA) in Portland,
Connecticut, when she was injured on-the-job on January 15, 2002.
The Office of Workers Compensation Programs (OWCP), Department of Labor,
accepted her claim for workers' compensation, and the agency assigned her
to a RCA limited-duty position.2 In April 2004, complainant's treating
physician for her injury (Dr. A) notified the agency that complainant
had reached maximum medical improvement (MMI).3 In accordance with OWCP
and agency regulations, the agency offered complainant a rehabilitation
job within her restrictions as a Sales, Services/Distribution Associate,
on January 10, 2007, following incorporation of minor adjustments by
Dr. A. Complainant rejected the offer, stating it was not in accord
with her medical restrictions. After approval of the offer by OWCP and
a warning to complainant that her benefits would cease if she failed
to accept the offer, complainant accepted the job on April 27, 2007,
stating that she did so "under protest."
Complainant objected to the new position because it moved her into a
new craft (Clerk craft), which affected her seniority and changed her
scheduled days off. She sought to remain in her own craft where she had
more seniority to take advantage of any upward mobility opportunities and
had Saturday/Sunday as her scheduled days off. The agency stated that,
once complainant reached maximum medical improvement, the agency was
required to provide her a rehabilitation job within her restrictions,
and sufficient work within her medical restrictions was not available
in the RCA craft. The agency found and offered complainant a job within
her limitations as a Distribution/Window clerk.
CONTENTIONS ON APPEAL
Complainant argued that her medical limitations rendered her an individual
with a disability; that the agency should have provided her a reasonable
accommodation to allow her to maintain a position as a Rural Carrier;
that the agency "did not look up" for a job for her; that the agency
should have asked her if she needed a reasonable accommodation; and that
the agency incorrectly determined that she did not establish a prima
facie case of discrimination (see infra).4
In its statement in opposition, the agency contended that complainant
misstated the standard of review on appeal from a FAD and that
complainant's arguments were not responsive to the FAD, including the
agency's finding that she was not an individual with a disability nor
was she a qualified individual with a disability.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Harassment
In the matter before us, complainant has claimed that she was harassed
and subjected to a hostile work environment based on disability and sex,
because the agency forced her to accept a rehabilitation job offer, and
she was denied upward mobility. Harassment/hostile work environment
based on an individual's protected status is unlawful. The incidents
must have been "sufficiently severe and pervasive to alter the conditions
of complainant's employment and create an abusive working environment."
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); see also Oncale
v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). An abusive or
hostile working environment exists "when the workplace is permeated with
discriminatory intimidation, ridicule and insult that is sufficiently
severe or pervasive to alter the condition of the victim's employment."
Harris V. Forklift Systems, Inc., supra. An alteration to an employee's
working conditions exists if a tangible, discrete employment action is
taken, e.g., hiring, firing, transfer, promotion, non-selection, or the
agency's actions were sufficiently severe and/or pervasive to create a
hostile work environment. Usually, however, a single incident or a group
of isolated incidents will not be regarded as discriminatory harassment.
See Frye v. Department of Labor, EEOC Request No. 05950152 (February 8,
1996); Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986).
To establish a prima facie case of hostile work environment harassment,
a complainant must show that (1) s/he belongs to a statutorily protected
class; (2) s/he was subjected to harassment in the form of unwelcome
verbal or physical conduct because of her/his protected class; (3)
the harassment complained of was based on her/his statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. See 29 C.F.R. � 1604.11; Davis v. Army, EEOC Appeal
Nos. 01A24469, 01A20558 (November 14, 2003).
Disability
According to the Commission's regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an agency
can show that reasonable accommodation would cause an undue hardship.
See 29 C.F.R. �� 1630.2(o) and (p); see Appendix.
Disparate Treatment Analysis
The analysis of a claim of disparate treatment is patterned after the
three-step scheme announced in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Once the complainant has established a prima facie
case, the agency is required to articulate a legitimate, nondiscriminatory
reason for its actions; to prevail, complainant must demonstrate, by a
preponderance of the evidence, that the agency's reason(s) for its action
was a pretext for discrimination, i.e., that the agency's reason was not
its real reason and that it acted on the basis of discriminatory animus.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
For purposes of further analysis of complainant's claim, we assume,
arguendo, without so finding, that complainant is a qualified individual
with a disability and is entitled to coverage under the Rehabilitation
Act.
Complainant's Reassignment
In response to complainant's claim that she was compelled to accept a
position as a Sales, Services/Distribution Clerk, the agency explained
that it was required to provide her a position within her restrictions,
and the process to provide complainant the position. When an agency
is informed that an employee has reached MMI, the agency is obliged
to assign the employee to a position within the employee's medical
restrictions. First, it must consider jobs within the employee's
current craft, but if no work is available, as was the case herein, the
agency must find a job for the employee within the facility. In this
case, once Dr. A informed the agency that complainant had reached MMI,
it initially looked for a job for her within her craft. Because none
existed, the agency searched for a position within the facility for her.
The agency found that work was available within the Distribution/Window
Clerk function within her limitations and for which she was qualified.
Thus, the agency offered her the Clerk position in accordance with its
responsibility to provide a reasonable accommodation to complainant.
We find that the agency acted properly and met its obligation to provide
complainant a reasonable accommodation. While the reassignment may not
have been her choice, it met the requirements of the Rehabilitation Act.
See RA Guidance, Question 9.5
Denial of Upward Mobility
Complainant objected to her reassignment, inter alia, because it changed
her classification from the RCA craft, where she had high seniority,
to the Clerk craft, where she would have none or little seniority.
She contended that if she sought "upward mobility" to another position,
her seniority in the Clerk craft would not be competitive. We have found
that the agency acted properly in reassigning complainant in order to
provide her a reasonable accommodation. Complainant's loss of seniority
rank, while unfortunate, is not relevant to her reassignment.6
Regarding complainant's contentions on appeal, as to complainant remaining
an RCA, the agency stated that its efforts to find a position in the RCA
craft for which complainant was qualified were unsuccessful. Further,
her contention that the agency "did not look up" for a job for a new job
misstated the agency's obligation; that is, the agency is only required
to assign complainant to a vacant position that is equivalent in terms of
pay and other relevant factors and may, if no equivalent jobs are vacant,
reassign an employee to a lower level job. See RA Guidance, p. 39.
To the extent that complainant may be claiming disparate treatment
discrimination based on sex and disability, even if we assume,
arguendo, without so finding, that she established a prima facie case
of discrimination, complainant did not put forth probative evidence
to demonstrate that the agency's reasons for its actions were pretext;
that is, that the reasons articulated by the agency for its actions were
not its true and real reasons but were taken in order to discriminate
against her and influenced by legally impermissible criteria, i.e.,
complainant's disability or sex. Also, complainant did not identify an
employee who was similarly situated to her but treated more favorably.
Harassment
As to complainant's claim of harassment, we find that she did not show
that her work environment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Complainant did not present probative evidence that her
workplace was "permeated with discriminatory intimidation, ridicule and
insult that [was] sufficiently severe or pervasive to alter the conditions
of the victim's employment." Harris V. Forklift Systems, Inc., supra.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
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 (S0408)
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 (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
April 9, 2010
Date
1 Complainant did not make a complaint of harassment through the agency's
internal procedures.
2 The Federal Employees Compensation Act (FECA), administered by OWCP,
requires agencies, whose employees are injured on the job to provide
compensation and/or suitable work within their medical restrictions
until they reach maximum medical improvement.
3 At this time, complainant's restrictions were no lifting over 20 pounds
or driving the agency's vehicle (LLV), and casing and fine manipulation
up to two hours.
4 In her appeal, complainant raised a new issue in regard to new medical
limitations from a chiropractor, a matter that arose after the events
at issue herein. The Commission has held that it is not appropriate
for complainant to raise new claims for the first time on appeal.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004). Should she wish to pursue these claims, complainant is
advised to contact an EEO counselor to begin the administrative process,
unless this claim has since been raised in another complaint.
5 The answer to Question 9 states, in part: "The employer may choose
among reasonable accommodations as long as the chosen accommodation
is effective." Ibid.
6 We note, in addition, that the PM stated that complainant had never
inquired about upward mobility or other jobs.
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0120081248
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081248