0120071009
09-07-2007
Marcia E. Kinchen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Marcia E. Kinchen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120071009
Agency No. 1H-304-0019-06
DECISION
On December 12, 2006, complainant filed an appeal from the agency's
November 7, 2006, 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.
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.
On May 24, 2006, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of sex (female), disability (lungs),
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when: (1) on February 23, 2006, she was forced
to return to work in a new position not within her medical restrictions;
and (2) since March 3, 2006, management has not processed or forwarded
her injury claim paperwork to the Office of Workers Compensation Programs
(OWCP).
The record reflects that complainant was employed as a Part-time Flexible
Parcel Post Distribution Clerk at the agency's Atlanta, Georgia Bulk
Mail Center ("BMC"). The record indicates that complainant had been on
leave without pay beginning on August 18, 2005 due to an injury/illness
and had not been released to return to work as of February 2006.
Complainant inhaled noxious fumes while on the job in August of 2005,
and an agency Form CA-20 dated August 25, 2005 stated that complainant
could return to work as soon as an alternate work location and conditions
could be found without noxious fumes or propane.
Complainant alleged that she was scheduled to return to work on March 6,
2006 in a modified assignment which was similar to her original modified
assignment.1 However, she alleged that on February 23, 2006, she was
called into a meeting with the facility's Plant Manager (PM), Lead Manager
of Distribution Operations, Acting Manager, Transportations and several
union representatives and told that she had to return to work or the
agency would have no choice but to terminate her. Complainant further
alleged that the position which the agency proposed for her was not
within her medical restrictions.
Believing she was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant was provided with a copy
of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b) concluding that complainant failed to prove that she was
subjected to discrimination as alleged.
Addressing complainant's allegation (1), the FAD found that complainant
suffered no harm or loss and this allegation was dismissed for failure
to state a claim. Nevertheless, the FAD also addressed complainant's
allegation (1) on the merits and found that complainant failed
to establish a prima facie case of discrimination or retaliation.
The FAD noted that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely that the PM met with complainant and
other agency employees and informed her that the agency had work for
her within her medical restrictions.2 FAD at 6. The PM stated that he
informed complainant that if she did not come back to work, there would
be no option but to terminate her.
Addressing complainant's allegation (2), the FAD found that this claim
was also dismissed on the grounds that it failed to state a claim.
In addition, the FAD found that the agency's Injury Compensation Office
received complainant's CA-2 form dated March 11, 2006 on March 21, 2006.
The agency's Injury Compensation Specialist (ICS) stated that the CA-2
was returned to complainant as the portion of the form which needed
to be completed by the supervisor was blank. The form was returned to
complainant so it could be completed by the supervisor and then it could
be resubmitted. The ICS stated that complainant did not return the
completed claim. IR at Exhibit 4. The FAD also noted that the record
establishes that none of the other managers were aware complainant was
attempting to submit the claim, but she ultimately accepted a modified
position.
The FAD then found that complainant failed to establish a prima facie case
of retaliation, as neither the PM nor the Lead Manager, Distributions
were aware of her prior EEO activity. In addition, the FAD found that
even assuming complainant established a prima facie case of retaliation,
the agency articulated a legitimate, nondiscriminatory reason for its
actions which were not proven to be pretextual. Finally, the FAD found
that complainant failed to establish a prima facie case of disability
discrimination. In so finding, the FAD noted that complainant failed to
establish that her impairment substantially limited one or more major
life activities. The FAD also found that there was no evidence that
agency management perceived complainant as having an impairment which
substantially limited any major life activities. The FAD also found
that assuming complainant established a prima facie case of disability
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions.
On appeal, complainant made several arguments: (1) she established
disability discrimination, as she was an individual with a disability
under the Rehabilitation Act; (2) as she was covered by the Rehabilitation
Act, the agency had an obligation to accommodate her; (3) she presented
evidence that she was harassed; (4) she proved discrimination based
upon her sex; and (4) she proffered evidence of retaliation. The agency
responded to complainant's appeal, urging the Commission to affirm the
FAD.
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").
With respect to complainant's allegation (1), we note she alleged that
on February 23, 2006, she was told to return to work or the agency would
have no choice but to terminate her. Complainant also alleged that she
was forced to return to a position which was not within her medical
restrictions. However, the PM stated that on the date at issue, he
notified complainant that there was work within her medical restrictions.
Further, the record indicates that the Department of Labor had approved
the job offer and released complainant to return to work. IF at
Exhibits 4-6. We note that on February 23, 2006, the agency prepared a
Modified Assignment (Limited Duty), offering her an assignment as a PTF
Clerk, PS-5, at the agency's Atlanta BMC Transportation Department with
an effective date of March 6, 2006. The PM stated that he attempted
to inform complainant prior to the meeting at issue that she should
report for work as there was work at the facility within her medical
restrictions; he spoke to a union representative and asked him to contact
complainant so she could report back to work.
We find the record does not indicate that complainant sought any
accommodation other than to be placed in an environment which was free
of noxious odors and fumes; she did not want to be placed at the BMC
facility's Annex. Complainant initially rejected the agency's offer for
her to work in the Atlanta BMC facility primarily due to issues over her
off days. However, when these issues were resolved, complainant accepted
an amended limited-duty job offer within her physical restrictions on
April 6, 2006 and returned to work at the Atlanta BMC Transportation
Department. IR at Exhibit 6. The record reflects that the PM stated
that complainant requested an accommodation to be assigned to her former
position in the transportation department, and not be given a position
at the agency's BMC Annex. IF at Affidavit F. The record indicates
that complainant's request was granted, and she was assigned to her
former position in the agency's BMC Transportation Department. Id.
There is no indication that the agency attempted to place complainant
in any position which would place her in contact with noxious fumes or
gasses which could have exacerbated her lung condition. We find that
complainant has not proffered any evidence to show that the agency's
articulated legitimate, nondiscriminatory reasons for its actions were
a pretext for unlawful sex, disability3 or reprisal discrimination4.
With respect to claim (2), we find that the record supports the agency's
explanation that the Injury Compensation Office received complainant's
CA-2 form dated March 11, 2006. The ICS stated that that the CA-2 was
returned to complainant as the portion of the form to be completed by
complainant's supervisor was blank, and thus the form was returned to
her to have it completed by the supervisor. The ICS sought to have
complainant return the CA-2 form to the Injury Compensation Office;
however, complainant did not return the form. Further, the record
supports the FAD's finding that none of complainant's other managers
were aware she was attempting to resubmit the CA-2 form and that she
then accepted a modified position. Regarding complainant's allegation
of retaliation, the PM and the Acting Lead Manager stated that they were
not aware of complainant's prior EEO activity at the time she sought
to submit her CA-2 and was allegedly required to return to work in a
position outside her physical restrictions. We find that complainant
has not shown that these legitimate, nondiscriminatory reasons for the
agency's actions were a pretext for unlawful discrimination.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision's finding of no discrimination.
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
__9/07/07________________
Date
1 The record indicates that complainant was placed in a modified
assignment in the BMC's Transportation Department by the agency's Injury
Compensation Office in November of 2002. The record further indicates
that due to complainant's lung impairment, she was required to work in
environments with clean air, as gases or odors would trigger an asthma
attack.
2 The FAD noted that the Plant Manager stated the Department of Labor
approved the agency's job offer and released her to return to work,
and the record corroborated the testimony of the Plant Manager.
3 For the purpose of analysis, and without specifically finding, that
complainant is an individual with a disability under the provisions of
the Rehabilitation Act.
4 As we find that the agency articulated legitimate, nondiscriminatory
reasons for its actions with regard to the instant allegations, we will
not address the FAD's finding that complainant's allegations failed to
state a claim under 29 C.F.R. � 1614.107.
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0120071009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071009
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