0120055329
02-28-2007
Maren Harbach, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Maren Harbach,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200553291
Hearing Nos. 340-2004-00110X, 340-2004-00324X
Agency Nos. 4F920018802, 4F920010403
DECISION
Complainant filed an appeal from the agency's Notice of Final Action
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Victorville facility in Victorville,
California. Complainant was injured on the job on January 11, 2002, as a
result of pulling the hand brake on her postal vehicle and was initially
diagnosed by the agency's doctor, Doctor 1, as having a neck strain,
thoracic strain, right gluteal strain. Doctor 1 released complainant
to work on January 23, 2002, with the following recommendations for the
first week: not lift more than 10 pounds and limit stooping and bending.
Complainant filed a workers' compensation claim for "cervical, thoracic
and right gluteal strains" and the claim was accepted by the Office
of Workers' Compensation Programs, U.S. Department of Labor (OWCP).
Two weeks following the injury, complainant consulted a private physician,
Doctor 2, who diagnosed complainant as having a "strain involving rt. side
of chest" and stated that complainant was unable to return to work and
recommended that she see a chiropractor. Doctor 2 reiterated the same
findings in a March 8, 2002 report and noted that it is too early to
tell when complainant may return to work.
In an April 12, 2002 Work Capacity Evaluation, Doctor 2 released
complainant to work six hours per day and included the following
restrictions: 6 hours walking, 6 hours sitting, 6 hours of standing
intermittently, no lifting, no reaching above shoulder, and 6 hours
per day of repetitive movements. As a result, on April 12, 2002, the
agency offered complainant a limited duty job offer in the position of
Modified City Letter Carrier where she would serve as a lobby greeter.
Complainant accepted the offer on April 15, 2002. On April 28, 2002,
Supervisor 1 (S1) suggested to the Postmaster that complainant work in
the office rather than the lobby since complainant's restrictions did not
prohibit such work and S1 believed complainant would be more useful in
the office. On May 2, 2002, the Postmaster and S1 raised the suggested
change in position with complainant and she did not agree to it.
In a May 13, 2002 letter, Doctor 2 requested complainant be given a
high, straight back chair during her work as a lobby greeter. Doctor 2
specifically stated that the folding chair did not offer sufficient
support for complainant.
On May 15, 2002, Doctor 2 further modified complainant's restrictions
to preclude her from doing office work. Specifically, Doctor 2 noted
complainant cannot answer phones more than 10 times per day, lift more
than 2 pounds, and cannot open and close the door necessary to admit
customers as mentioned in the job description more than five times
per day.
On May 29, 2002, complainant's OWCP Nurse obtained authorization for a
high back chair from complainant's Claims Examiner. In June 6, 2002,
the OWCP Nurse sent a memorandum to S1 documenting authorization for
the chair chosen via a catalog. The record contains a June 11, 2002
invoice for the high back chair.
On January 2, 2003, Doctor 2 restricted complainant to working four
hours per day for an anticipated three-month time frame. Complainant's
restrictions included: 4 hours of sitting, 4 hours of walking, 4 hours
of standing, no reaching, no twisting, no pushing, no pulling, lifting for
1 hour up to 2 pounds, and permitted repetitive movements (no keyboard).
On August 18, 2003, complainant was released to perform letter carrier
duties; however, complainant was still restricted from lifting more than
10 pounds.
Complainant filed two EEO complaints alleging that she was discriminated
against and subject to harassment on the bases of race (Caucasian),
sex (female), religion (unspecified), color (white), disability
(back, right side of spine, leg, bulging neck/discs, and asthma), age
(D.O.B. 09/09/56), and in reprisal for prior protected EEO activity
since April 15, 2002, when:
1. Complainant was belittled;
2. On May 2-15, 2002, Supervisor 1 (S1) attempted to change her job
offer;
3. On May 15, and July 8, 2002, complainant was harassed for using the
restroom and taking office breaks;
4. Complainant was denied medical treatment;
5. Complainant was denied rights under the Family Medical Leave Act
(FMLA);
6. Complainant was denied accommodations, including a high back chair,
someone to open the door for her, and adherence to her OWCP job offer;
7. Complainant was ordered not to fill out disability (OWCP) paperwork
on the clock;
8. Complainant's pay was obstructed;
9. Complainant's communications were obstructed;
10. Complainant was not provided adequate help, information, and direction
concerning her injury;
11. On May 2, 2003, Supervisor 2 (S2) grabbed complainant's purse to
determine how heavy it was; and
12. On May 3, 2003, complainant was not allowed to receive a personal
phone call causing emotional distress to her and her family.2
Complainant requested a hearing on her complaint before an EEOC
Administrative Judge (AJ). On May 17, 2004, the agency filed its Agency's
Motion For A Decision Without A Hearing. On June 1, 2004, complainant
filed Complainant's Response to Agency's Motion For A Decision Without
A Hearing.
On June 28, 2005, the AJ issued a decision without a hearing. In his
decision, the AJ acknowledged hearing oral arguments from the parties on
the agency's motion for summary judgment during prehearing telephonic
conferences on January 26, and February 24, 2005. With regard to
complainant's disability claim, the AJ found complainant was disabled
based on her weight limitation of lifting. The AJ found complainant's
weight limitation of lifting no more than 2 pounds substantially limited a
major life activity of lifting, and noted even after the weight limitation
increased to 10 pounds, this still amounted to substantially limiting
the major life activity of lifting. However, the AJ found the agency
accommodated complainant's medical restrictions. The AJ stated that the
agency may not have offered complainant the accommodation she requested,
but found the accommodations offered worked and were reasonably timely.
Additionally, the AJ noted complainant claims that being told to use the
employee entrance rather than having the Postmaster open and close the
doors for her constituted harassment. The AJ also noted that complainant
claims that on one occasion Supervisor 3 laughed when she told him that
she had to walk around the building to use the employee entrance. The AJ
summarized that the other incidents that complainant allege created a
hostile work environment are that the Postmaster told her not to fill out
disability (OWCP) paperwork on the clock, which she alleged obstructed
her communications with OWCP and her ability to collect additional OWCP
payments. Complainant also alleged that she was not provided adequate
help, information and direction concerning her injury claim with OWCP.
The AJ found that concerning these latter claims, the undisputed facts
establish that the Postmaster contacted the agency's District Injury
Compensation Office for guidance on whether he was required to allow
complainant to use part of the 4 hours of her limited duty assignment
to complete OWCP paperwork and file appeals. The AJ noted that the
Postmaster was instructed to tell complainant that she was to communicate
with OWCP on the 4 hours of time that they were paying her and not to
allow complainant to complete OWCP paperwork on the 4 hours of time that
she was supposed to be available to work for the agency in accordance with
her limited duty job offer that was approved by the Department of Labor.
The AJ found complainant failed to provide sufficient evidence to show
that there was a genuine material dispute concerning whether there were
any similarly situated employees who were members of different classes
who were treated differently under like circumstances. Accordingly,
the AJ determined there is insufficient evidence to establish that the
agency obstructed complainant's OWCP pay, that the agency obstructed
her ability to collect OWCP payments, that the agency obstructed her
ability to communicate with OWCP, or that the agency failed to provide her
with the necessary help to fulfill the requirements of her OWCP claims,
and that similarly situated employees not in her protected classes were
treated differently.
The AJ also noted that complainant claimed that on May 2, 2003, Supervisor
2 lifted her black bag to see how heavy it was because she had a 2-pound
weight limitation on lifting, and on May 3, 2003, Supervisor 2 would not
allow her to receive a personal telephone call. The AJ found that even
assuming these incidents occurred as described, and even after they are
viewed in their totality, there is insufficient evidence to show that a
reasonable person would view the agency's conduct as hostile, offensive,
or abusive under like circumstances.
On July 11, 2005, the AJ issued an Order Entering Judgment. Complainant
filed the present appeal on August 3, 2005. On August 31, 2005, the
agency issued a Notice of Final Action stating that it did not receive the
AJ's decision without a hearing until July 22, 2005. The agency fully
implemented the AJ's decision finding no discrimination. The agency's
Notice of Final Action informed complainant of her right to appeal its
decision to the Commission.
Thereafter, complainant filed a second appeal with the Commission on
September 26, 2005. Complainant states that she received the agency
decision on September 1, 2005. Complainant filed a narrative statement
in support of her appeal on October 19, 2005. On October 28, 2005,
complainant filed exhibits in support of her narrative statement.
We find that complainant's brief filed on October 19, 2005, and
exhibits filed on October 28, 2005 were untimely filed and will not
be considered in the present decision. See 29 C.F.R. �1614.403(d).
Even if complainant's submissions were timely, such submissions do not
change our ultimate finding of no discrimination in this appeal.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
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's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. 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. at 255. An 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.
Upon review of the record, we find the AJ properly granted summary
judgment in this case as no genuine dispute of material fact exists.
We find that the AJ's decision properly referenced the appropriate
regulations, policies, and laws. With regard to complainant's claim that
she was denied a reasonable accommodation, we note that following Doctor
2's release of complainant to return to work on April 12, 2002, she was
offered the limited duty lobby greeter position, which she accepted on
April 15, 2002. Despite the discussion of switching complainant to work
in the office as opposed to the lobby, we note complainant acknowledges
that she was never switched to the office position.
Further, with regard to her claim that she was denied a high back chair
by S1, the record reveals that Doctor 2 first requested a high back chair
for complainant on May 13, 2002. We note that the OWCP Nurse thereafter
attempted to obtain authorization for the chair from the Claims Examiner
and once the authorization was granted, the OWCP Nurse wrote a May 29,
2002 memorandum to the Postmaster informing him of the need to obtain a
chair from another facility or to order such a chair for complainant.
The record reveals a chair was chosen from a catalog by June 6, 2002,
and ordered by June 11, 2002. In her deposition, complainant acknowledged
that a chair was received at the agency in July, and that within a week or
two of its receipt it was put together. We note that in her Complainant's
Response to Agency's Motion For A Decision Without A Hearing, complainant
claims that the chair was not assembled until three weeks after its
arrival and that it took a total of 2 1/2 months for her to get the chair.
We find that even if it took 3 weeks for the chair to be assembled after
its arrival, we note complainant ultimately received the high back chair
in a reasonably timely manner and there is no indication by complainant
that the chair was an ineffective accommodation.3
Complainant also requested to be permitted to have an agency employee
open and close the door for her in order for her to leave the lobby and
access the workroom for breaks. As a result of her medical restrictions,
complainant was precluded from opening and closing the door more than
five times per day. Instead of having another employee stop working to
assist complainant in opening and closing doors, the Postmaster proposed
for complainant to walk out the front doors of the facility, which had
no door knobs to turn, and walk on the sidewalk around the building and
come through the employee entrance which had automatic doors. The record
reveals that allowing complainant to walk around the building to enter
the workroom was at most a 5-minute trip. We find the arrangement
offered by the agency satisfied its obligation to provide a reasonable
accommodation to complainant. Although the accommodation offered was
not the one proposed by complainant, we note the agency is not obligated
to provide the exact accommodation suggested, rather the accommodation
offered must be an effective one. Thus, complainant failed to show she
was denied a reasonable accommodation by the agency.
With regard to complainant's claim that she was ordered not to complete
OWCP paperwork on the clock, which she alleged obstructed her pay and
communications with OWCP, we note that an attack on the handling of her
claim by OWCP would constitute a collateral attack on the Department of
Labor's process and thus, is outside of the Commission's jurisdiction.
The record reveals that the Postmaster contacted the Agency's District
Injury Compensation Office for guidance on whether he was required
to allow complainant to use part of the 4 hours of her limited duty
assignment to complete OWCP paperwork and file appeals. The Postmaster
was instructed to tell complainant that she was to communicate with
OWCP on the 4 hours of time that they were paying her, but not to do it
on the 4 hours of time that she was supposed to be available to work
for the agency in accordance with her limited duty job offer that was
approved by the Department of Labor. We find complainant failed to
provide sufficient evidence to show that there was a genuine material
dispute concerning whether there were any similarly situated employees
who were members of different classes who were treated differently under
like circumstances. Accordingly, we concur with the AJ that there is
insufficient evidence to establish that the agency obstructed her OWCP
pay, that the agency obstructed her ability to collect OWCP payments,
that the agency obstructed her ability to communicate with OWCP, or that
the agency failed to provide her with the necessary help to fulfill the
requirements of her OWCP claims, and that similarly situated employees
not in her protected classes were treated differently. We note that
complainant's claim regarding FMLA issues appear to be simply a reference
to her OWCP issues. Complainant has not indicated any leave hours she was
denied apart from her OWCP hours at issue and we find no discrimination
regarding any FMLA issues.
Finally, we find regarding the remaining alleged incidents of harassment
(on May 15, 2002, the Postmaster refused to open the lobby door for her
to use the restroom; on July 8, 2002, S3 laughed when complainant told him
she had to use the employee entrance; on May 2, 2003, S2 grabbed her purse
to determine how heavy it was; and on May 3, 2003, she was not allowed
to receive a personal call), that the alleged incidents considered in
totality are not sufficiently severe or pervasive to constitute a hostile
work environment. Furthermore, there is no indication that any incident
was motivated by a discriminatory reason.
Accordingly, the agency's Notice of Final Action finding no discrimination
is AFFIRMED.
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
February 28, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 On January 24, 2005, complainant withdrew the issue identified in
Agency Case No. 4F-920-0188-02 because it was subsumed into the issue
identified in Agency Case No. 4F-920-0104-03.
3 We do not address in this decision whether complainant is a qualified
individual with a disability.
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0120055329
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055329