Maren Harbach, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 28, 2007
0120055329 (E.E.O.C. Feb. 28, 2007)

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