0120082468
01-15-2010
Loretta E. Sauvageau, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Loretta E. Sauvageau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120082468
Agency No. 4E570001506
DECISION
On May 4, 2008, complainant filed an appeal from the agency's March 31,
2008 final decision 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. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
(1) Whether complainant established that she was placed in an off-duty
status because of management's sex or disability-based discriminatory
animus.
(2) Whether the agency failed in its obligation to provide complainant
with a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
employed as a Mail Processing Clerk, PS-05, at the Fargo Post Office
in Fargo, North Dakota. On August 4, 2006, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of sex
(female) and disability (upper extremities, feet and left knee) when,
on February 15, 2006, she was advised that management had no work for
her and she was placed in an off-duty status.
The agency initially dismissed the complaint on procedural grounds on
August 14, 2006. Following a timely appeal, the agency was ordered
by the Commission to process the complaint. See Sauvageau v. United
States Postal Serv., EEOC Appeal No. 0120065221 (October 2, 2007).
An Equal Employment Opportunity Investigator processed the complaint,
and a copy of the Investigative Report was transmitted to complainant
on February 5, 2008. Subsequently, in a letter dated March 1, 2008,
complainant requested a final agency decision without a hearing.
Final Agency Decision
The FAD found that complainant stated she had developed bilateral
carpal tunnel syndrome; bilateral disorders of bursae and tendons in
the shoulder region; bilateral other affections of the shoulder region;
radial styloid tenosynovitis; impinged shoulders and deQuarvain's disease.
The FAD also noted that complainant underwent right shoulder surgery on
October 20, 2004, and that she planned to return to work in January of
2005, but prior to that time she encountered unexpected medical problems
related to her left lower leg. The FAD indicated that complainant had
a blood clot in that leg caused by Antiphospholipid Syndrome, a rare
blood clotting disease. As a result of the blood clot, complainant
experienced severe nerve damage and loss of blood flow. The FAD noted
that complainant then followed a lengthy course of treatment (including
surgery on January 12, 2005) to save her left leg and foot. The FAD
noted that her foot required elevation during this time, and she was
unable to work.
The FAD then found that in a letter dated February 15, 2005, complainant
requested accommodations under the Rehabilitation Act, specifically, that
her job be modified so that she could avoid being on her feet and avoid
the repetitive motions of casing mail. The FAD found that complainant's
request was initially placed on hold, pending medical clearance from her
treating physician. The FAD found that a report subsequently indicated
that complainant was unable to perform her usual job due to significant
limitation of the use of both upper extremities. The report stated that
complainant had the permanent restrictions of being unable to reach, push,
pull or lift over her shoulder; she was able to engage in repetitive
wrist and shoulder activities only for 30 minutes with a maximum of 10
pounds; she was not allowed to grasp with outstretched hands; and she
was not allowed to throw letters or packages.
The FAD then found that in a subsequent report dated May 12, 2005,
another treating physician authorized complainant to return to work
with restrictions pertaining to her left lower leg. She was limited
to no lifting above 10 pounds; no walking more than 30 minutes per hour
(maximum of 1.5 hours per day), no standing more than 30 minutes per hour
(maximum 1.5 hours per day), no sitting more than 60 minutes per hour
(maximum 4 hours per day); no stooping or bending; limited climbing;
and a four hour workday. The FAD found that after management received
the above-referenced medical reports, a teleconference was held with
complainant and members of the District Reasonable Accommodation
Committee (DRAC) on May 16, 2005 in order to address complainant's
accommodation needs. Following the DRAC meeting, the Postmaster,
offered to temporarily accommodate complainant's restrictions for one
hour per day. The FAD found that on May 17, 2005, complainant accepted
management's accommodation offer to work one hour per day on a temporary
basis. The FAD noted that on May 18, 2005, complainant's work schedule
was expanded to four hours per day. The FAD found that as of September
2005, complainant had been released to work eight hours, and so she was
permitted to return to full-time work. The FAD found that as reflected
in her temporary Offer of Modified Assignment dated September 14, 2005,
her modified duties were as follows: Unendorsed Bulk Business Mail
(UBBM) mail; uncoded mail 4 hours; Review & Tear ups 2 hours; Medicare
6700's; US Bank Riffling 1 hour; Sort Customer Labels 1 hour. The FAD
found that according to an Injury Compensation Specialist (female),
these duties constituted "make-work". The FAD found that complainant
continued to perform these duties through February 14, 2006, at which
time she was informed by her union steward that her last day of work
would be February 15, 2006. She was also informed at that time that
management would no longer be accommodating her work restrictions.
Complainant was placed on the OWCP's periodic rolls, effective February
19, 2006 and she began receiving OWCP benefits as of that date.
Next, the FAD found that complainant established that she was an
individual with a disability within the meaning of the Rehabilitation
Act at the time that she was denied accommodations in February of 2006.
The FAD noted that, at a minimum, complainant's 10 pound lifting
restriction was a substantial limitation on the major life activity
of lifting. The FAD further found, however, that the record did not
establish that complainant was otherwise qualified for the position of
Mail Processing Clerk. According to the agency, the record showed that
in September of 2005, management conducted a search in an effort to find
complainant a suitable reassignment, and the search was completed on
November 21, 2005. The FAD found that a similar process was undertaken
in 2007, however, in both cases, no suitable positions were identified.
Additionally, the agency noted that complainant did not identify a vacant,
funded position with essential duties she was capable of performing.
The FAD concluded that complainant's failure to accommodate claim is
without merit.
Addressing disparate treatment, the FAD found that complainant did not
establish a prima facie case of discrimination, noting that none of
the comparators were similarly situated to complainant and none of her
comparators had similar physical limitations. The FAD further found that
the agency articulated a legitimate, nondiscriminatory explanation for its
actions. Specifically, complainant had a no repetitive work restriction,
and after a search/review, they could not find available work which
would meet the limitations set by complainant's physician. In addition,
the FAD found that the Injury Compensation Specialist explained that the
majority of work for a mail processing clerk involves extensive use of
the upper extremities to sort different types of mail, and complainant's
permanent limitations would not allow her to perform this type of work.
The FAD concluded that complainant failed to establish that management's
explanation was a pretext for unlawful discrimination. The FAD noted that
although complainant argued that management allowed various comparators
to work with modified duties, she did not establish that she was capable
of performing the same type of work or that their employment situations
were similar.
The FAD additionally addressed complainant's claim that management's
animus towards her was revealed in certain "smoking gun" emails from
the Injury Compensation Specialist. In one email to the Plant Manager,
dated August 29, 2005, she noted that complainant was absent due to her
injuries from August 20, through 24, 2005. FAD at 20. She commented that
"[t]his is going to be a chronic problem" and that complainant would
end up going out on full OWCP compensation if they did not act soon.
Id. In another email to the Plant Manager, the Injury Compensation
Specialist indicated that they needed to discuss complainant's
situation, and commented that complainant "[was] going to cause nothing
but problems." Id. She inquired whether complainant was doing "[a]ny
productive work or whether she was just sitting around waiting for the
telephone to ring." Id. The FAD found however, that these emails did
not prove discriminatory intent. The FAD states that "[t]he emails did
nothing more than raise concerns as to whether you were able to safely
perform productive work." The FAD concluded that complainant failed to
prove that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates her version of the facts.
In particular, she indicates that no one spoke to her about her removal
until long after the fact. She also insists that when at work, she
was working productively. She also reiterates a claim made during the
investigation that all females in the Fargo Post Office were discriminated
against by not being offered the opportunity to serve as a 204B or
join the ASP program. Complainant additionally asserts that one of her
(female) comparators had very similar restrictions, and was treated more
favorably than she. She also notes however, that the comparator "did not
have the foot and leg disabilities." Complainant also states that another
comparator (female) has much more severe standing restrictions than hers.
She additionally states: "My 'make work' and/or 'non-productive' work as
management so like to call it - has suddenly became productive work for
a female carrier." The agency asks the Commission to affirm its FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "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").
Disparate Treatment
The allocation of burdens and order of presentation of proof in a Title
VII or Rehabilitation Act case alleging disparate treatment discrimination
is a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, assuming complainant was "disabled" at the relevant time, and that
she could otherwise establish a prima facie case of discrimination on the
alleged bases, the agency has articulated a legitimate, nondiscriminatory
reason for its actions. Specifically, although a search was conducted,
no vacant funded position were identified with duties that complainant
could perform because of her limitation of thirty minutes per day of
repetitive work with her hands and wrists. This record contains evidence
that initially, in September 2005, when complainant was released back to
work for a full 8 hours, the agency sought to accommodate her temporarily
by offering her a temporary modified duty position. In the meantime,
the record suggests that the agency was looking into whether there was
actually 8 hours of productive work that complainant could perform.
The record contains a document which shows that in November 2005, the
agency conducted a search for vacant, funded positions for complainant,
but no such positions were identified. See Report of Investigation (ROI),
Affidavit C, at 12-14. Ultimately, in February 2006, complainant was
placed off-duty and was referred to a Vocational Rehabilitation Program
at that time. See ROI, Counselor's Report at 35.
The Commission finds that complainant has not presented any persuasive
evidence that sex discrimination motivated the agency's actions. In so
finding, we note that several of the co-workers whom complainant states
were treated more favorably were also female, and several of the alleged
discriminating officials were female, two factors which weaken her claim
that sex-based animus was involved. As to complainant's claim on appeal
that her supposed "make work" and/or "non-productive" work has suddenly
became productive work for another female carrier, we note that a carrier
is not similarly-situated to a mail processing clerk such as complainant.
Additionally, we are not persuaded, based on a review of their content,
that the alleged "smoking gun" emails suggest that discriminatory animus
was at play. Moreover, complainant herself suggests that management
had another motivation for treating some of her comparators better,
namely, she stated that employees such as herself who receive OWCP are
not treated as well as those who do not. See ROI, Affidavit A at 14.
Accordingly, we must conclude that complainant's disparate treatment
claims fail. In so finding, we note that we do not have the benefit of
an AJ's findings after a hearing, as complainant chose a FAD instead,
and therefore, we can only evaluate the facts based on the weight of
the evidence presented to us.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p).
In order to be entitled to protection from the Rehabilitation Act,
complainant must make the initial showing that she was a "qualified
individual with a disability." Assuming arguendo that complainant is an
individual with a disability within the meaning of the Rehabilitation Act,
we conclude that she has not proven, by a preponderance of the evidence
that she was a qualified individual with a disability. A "qualified
individual with a disability" is an individual with a disability who
satisfies the requisite skill, experience, education and other job
related requirements of the employment position such individual holds
or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
Although complainant contends that work existed at the agency that she
could perform,1 complainant has not identified an actual vacant, funded
position at the agency that she could have performed at the relevant
time, and it is her burden to do so. We note that an employer is not
required to create a job for a disabled employee, nor is it required to
transform its temporary light or limited duty assignments into permanent
jobs to accommodate an employee's disability. See Mengine v. Runyon,
114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. United States
Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement
Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21
(September 3, 1996). Accordingly, we decline to find that the agency
violated the Rehabilitation Act in this instance.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
____01/15/10______________
Date
1 Complainant proposed to the agency that she could perform the following
tasks: answer telephones; file letters and mail; perform data processing
and computer work 30 minutes per day; move empty equipment on the
workroom floor; review work; throw/sort UBBM mail; work on tear ups and
hand cancelling for 30 minutes per day.
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2
0120082468
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120082468