01A20596
05-29-2003
Linda Stanton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda Stanton v. United States Postal Service
01A20596
May 29, 2003
.
Linda Stanton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20596
Agency No. 4B-020-0135-01
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
BACKGROUND
During the period in question, complainant was employed as an
Accounting Technician with the agency. Believing she was the victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint alleging that the agency discriminated against
her on the basis of disability (depression) when, between March and
May 2000, it (1) informed complainant that she had to submit medical
documentation with each absence from work, (2) issued complainant a
letter of warning (LOW) for failure to be regular in attendance<1>
for absences covered under the Family and Medical Leave Act (FMLA),
(3) informed complainant that she had to update her FMLA documentation
every 30 days, (4) informed complainant that she could not take her
prescription medicine at work, (5) gave complainant a direct order to
attend crises intervention, (6) informed complainant that she was not
eligible for FMLA, (7) contacted the Employee Assistance Program (EAP)
about complainant on several occasions without reason, (8) belittled
complainant for working five minutes beyond her tour of duty, and (9)
discriminated against complainant in disciplining her.
Complainant's supervisor (S1) stated (1) she initially informed
complainant that she had to submit medical documentation for every absence
based on agency policy but later discovered that she was incorrect and
informed complainant of such, (2) complainant was issued a LOW because she
used 44.5 hours of unscheduled leave during a four week period<2> and gave
little or no notice that she would be absent from work, (3) she informed
complainant that only doctors' visits and treatments were covered under
her FMLA documentation and that additional documentation or information
would be needed to cover intermittent absences, (4) complainant was
found napping at a coworker's desk on three occasions so she was given a
discussion, at which time she stated that her medication made her drowsy
and S1 suggested complainant discuss the medication's side effects with
her physician, (5) complainant was given a direct order to attend crises
intervention because a problem arose between her and a coworker and
complainant refused to attend the meeting scheduled between the two, (6)
complainant failed to meet the requirement of working a minimum of 1250
hours during the 12 month period prior to the date of requested absence to
be eligible for FMLA, (7) S1 contacted an EAP Counselor regarding previous
threats from complainant and previous issues between complainant and a
coworker, (8) she did not belittle complainant but instead had an official
discussion with complainant regarding working unauthorized overtime, and
(9) she did not discriminate against complainant. S1 further indicated
that her office was subject to daily, weekly, and monthly deadlines and
required response to customer inquiries and that complainant's excessive
absenteeism created a negative impact and affected productivity.
The record contains Family and Medical Leave Act provider certifications
dated in 1995, 1998 and 2000, Employee Assistance Program correspondence
dated in 1995 and 1997, correspondence from the agency medical officer
dated in 1996 and 1999, correspondence from complainant's physician
dated in 1995 and 2000, and a hospital admittance statement and bills
dated in 1995 and 2000, all of which reveal complainant's medical history.
The record reveals the following. In 1993, complainant was diagnosed with
Major Depression, Recurrent, with depressive episodes. According to the
record, the duration of complainant's condition was unknown. The record
revealed that complainant had increased difficulty sleeping; decreased
appetite, energy and motivation; frequent crying spells; and poor
concentration as a direct result of her sleep difficulty. Complainant's
physician explained that complainant would endure stressful situations
at home, which would inhibit her sleep, which in turn would effect her
concentration at work. The record further revealed that complainant
attended therapy sessions and was given medication (Prozac and Klonopin)
to decrease depression and stabilize its symptoms. Complainant was
hospitalized three times for symptoms related to her depression. She was
hospitalized for ten days in June 1991 and four days in early May 1995 and
attended a partial hospitalization program for ten days in late May 1995.
The agency conducted an investigation and informed complainant of her
right to elect a hearing before an EEOC administrative judge (AJ) or
an immediate FAD. Complainant failed to make an election. The agency
issued a FAD finding no discrimination. The agency found that complainant
failed to show that she is substantially limited in a major life activity.
It further found that assuming that complainant was a qualified individual
with a disability, she failed to show that she was treated less favorably
than those outside of her protected class and failed to show pretext.
Finally, the agency found that complainant failed to show that the
alleged incidents rose to the level of discriminatory harassment.
ANALYSIS AND FINDINGS
To establish a prima facie case of disability discrimination, a
complainant must show that: (1) she is an individual with a disability,
as defined by 29 C.F.R. �1630.2(g); (2) she is a qualified individual
with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency
either treated her less favorably than similarly situated individuals
outside of her protected class or failed to provide her with a reasonable
accommodation.
As a threshold matter in a case of disability discrimination, the
complainant must demonstrate that she is entitled to protection under
the Rehabilitation Act, i.e., an "individual with a disability." See 29
C.F.R. � 1630.4. We are not rendering a determination on the agency's
finding that complainant is not an individual with a disability because,
we find, even assuming that complainant is covered by the Rehabilitation
Act, she failed to establish discrimination based on disability for the
reasons outlined below.
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, complainant must first establish a prima facie case.
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 her 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.
With respect to claims (1) and (3) through (9), complainant failed to
establish that the legitimate, nondiscriminatory reasons articulated by
the agency for its actions were pretextual. Complainant did not show
that similarly situated individuals outside of her protected class were
treated more favorably or that an inference of discrimination existed.
Regarding claim (2), reasonable accommodation includes modifications
to the manner in which a position is customarily performed in order to
enable a qualified individual with a disability to perform the essential
job functions. Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, EEOC No. 915.002
(October 17, 2002) (Enforcement Guidance).
S1 stated that complainant was issued a LOW because she used 44.5 hours
of unscheduled leave during a four week period and gave little or no
notice that she would be absent from work. S1 stated that the FMLA
documentation that complainant submitted was insufficient to cover
intermittent absences outside of her doctor's visits and treatments.
In her affidavit, complainant stated that some of the absences mentioned
in the LOW were related to her FMLA illness (depression).
The Rehabilitation Act permits the use of accrued paid leave or unpaid
leave as a form of reasonable accommodation. Enforcement Guidance.
Regarding the LOW at issue, the record suggests that complainant failed
to substantiate a connection between some of her intermittent absences
and her depression. In fact, complainant only stated that some of
the absences were related to her depression. In addition, the record
suggests that complainant failed to follow agency policy regarding
providing appropriate notice for absences. Thus, we are not persuaded
by a preponderance of the evidence that the agency's issuance of the
LOW violated the Rehabilitation Act.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to 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
May 29, 2003
__________________
Date
1The LOW was later rescinded under the negotiated grievance process.
2The record reveals that complainant used eight hours of unscheduled sick
leave on five days from mid to late March 2000 and four and a half hours
of unscheduled sick leave on April 12, 2000. The reasons given for her
absence were illness, to accompany her daughter to a medical procedure,
and migraine headaches.