0120093235
03-21-2013
Maria Saldana, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Maria Saldana,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120093235
Agency No. 4A-100-0131-08
DECISION
Complainant filed an appeal from the Agency's June 19, 2009, 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to prove that the Agency subjected her to unlawful discrimination and failed to accommodate her disabilities when it denied her light duty from February 2008 until June 2008, and in 2009.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Highbridge Station of the Bronx, New York Post Office. Report of Investigation (ROI), Exhibit 14. According the position description, City Carriers deliver and collect mail on foot or by vehicle under varying road and weather conditions in a prescribed area and maintain professional and effective public relations with customers and others. The position description further states that City Carriers may be required to carry mail weighing up to 35 pounds in shoulder satchels or other equipment and to load or unload containers of mail weighing up to 70 pounds.
On or about February 6, 2008, Complainant was hospitalized and diagnosed as suffering from severe anemia. Consequently, she was approved for sick leave during that period of time. Complainant's physician (Dr1) cleared her to return to work on February 11, 2008, and Complainant returned to work on February 14, 2008. When Complainant returned to work, she requested a light-duty assignment that did not involve lifting, pushing, or pulling any object more than five pounds or walking for an extended period of time.
Complainant's supervisor (S1) informed Complainant that she needed to provide medical documentation to support her request from her physician. In a note dated February 16, 2008, Dr1 informed the Agency that Complainant was anemic, had been hospitalized for a blood transfusion, and could not carry over five pounds. This five-pound lifting restriction was repeated in documentation from Dr1 dated February 21, 2008, and March 24, 2008. On February 19, 2008, S1 initially did not permit Complainant to work because of her medical restrictions but later allowed her to work while a union steward discussed the matter with Complainant. Complainant was off work the next day, but when she returned to work on February 21, 2008, S1 again told that she could not begin work. The Station Manager asked Complainant to provide additional medical documentation of her condition.
On February 23, 2008, Complainant provided the Station Manager with additional documentation, but the Station Manager directed her to leave the facility. On May 6, 2008, Complainant submitted a written request for a temporary light-duty assignment. Complainant was either on annual leave, leave without pay (LWOP), or absent without pay (AWOL) status from February 25, 2008, until late May 2008. During her absence from work, the Agency directed Complainant to report to duty or to submit documentation supporting her absence in letters dated April 16, 2008, and May 1, 2008. In letters dated March 24, 2008, May 6, 2008, and May 8, 2008, Dr1 informed the Agency that Complainant was restricted from lifting, pushing, or pulling more than five pounds or walking for extended periods of time until June 2, 2008. On May 6, 2008, Complainant requested light duty on a light-duty request form.
In June 2008, Dr1 rescinded Complainant's lifting restrictions, and Complainant returned to work on June 3, 2008. On October 14, 2008, Complainant injured her back while working. On November 25 2008, December 23, 2008, and January 12, 2009, a physician (Dr2) indicated that Complainant was treated for lumbar sprain/strain and should remain off work. Dr2 released Complainant to work light-duty assignments beginning on January 22, 2009. Additionally, Dr2 indefinitely restricted Complainant from lifting more than five pounds. Consequently, Complainant again requested a light-duty assignment, but the Agency denied her request.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic/Dominican), sex (female), disability, and in reprisal for prior protected EEO activity when:
1. The Agency denied Complainant light duty from February 23, 2008, to June 2, 2008; and
2. The Agency denied Complainant light duty from January 22, 2009, and continuing.
In an investigative affidavit statement, Complainant sated that S1 did not allow her to return to work although medical documentation authorized her to return to work with a five-pound lifting restriction beginning on February 11, 2008. Complainant stated that S1 received her medical documentation on February 16, 2008, and she reported to work on February 19, 2008, but S1 disqualified her to work because he did not consider her request for light duty. Complainant further stated that she was denied work on February 21, 2008, until her union representative went to the Station Manager's office. Complainant stated that she provided additional medical documentation but was still not provided with a light-duty assignment or allowed to work. Complainant also stated that she and her union representative asked S1 for a form to request light duty, but S1 initially stated that he was not aware of such a form, and she did not need the form if she had documentation. Complainant stated that she became aware of a light-duty form on May 6, 2008, and submitted the form on that date.
Complainant further stated that she was off work from February 14, 2008, through June 2, 2008, because the Agency would not accommodate her and provide temporary light duty. Complainant stated that she returned to work on or about June 3, 2008, when the need for the accommodation no longer existed. Complainant also stated that after she was injured while working on October 14, 2008, she attempted to return to work on light duty on January 20, 2009.
S1 stated that he did not make the decision to deny Complainant light duty in 2008, but Complainant provided documentation in February 2008 that indicated that she had severe anemia, was hospitalized for a blood transfusion, and could not carry objects over five pounds. S1 stated that the Station Manager made the 2008 decision to deny Complainant light duty, and to his knowledge, the Station Manager's decision was based on Complainant's failure to provide needed additional documentation. S1 stated that Complainant did not request to appear before the District Reasonable Accommodation Committee (DRAC), and he was not sure if she was referred to DRAC.
S1 further stated that Complainant also filed an Injury Compensation claim when she was injured at work and provided the Injury Compensation Office with documentation regarding her condition. He stated that Complainant did not request light duty in January 2009; she would have requested limited duty regarding her back injury. S1 stated that because of the severity of Complainant's restrictions, it has not been possible to provide her with a limited duty assignment. S1 also stated that management has searched and made inquiries for work within Complainant's restrictions, but work has not been available because of the severity of her restrictions.
The Station Manager stated that Complainant was not provided with a light duty assignment from February 23, 2008, through June 2, 2008, because he searched for work, but there was no work available within her five-pound lifting restriction. He stated that he was not involved in the denial of Complainant's request for an accommodation in 2009, and was not aware of the Agency referring Complainant to DRAC. The Station Manager also stated that he did not approve or disapprove any employee for light duty while at the Highbridge Station.
Final Agency Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision found that Complainant was not subjected to unlawful discrimination. Specifically, the decision found that Complainant was not an individual with a disability because she did not prove that she was substantially limited in a major life activity. The decision further found that Complainant failed to establish a prima facie case of discrimination for claims 1 and 2 because she did not show that similarly-situated individuals were treated more favorably than she was treated under similar circumstances.
The decision noted that there five coworkers (C1, C2, C3, C4, C5) cited by Complainant as comparators. C1 (Hispanic female) had not been in a light-duty capacity since 2007 and 2008; C2 (Hispanic female) was provided light duty because of pregnancy in early 2009 but was subsequently placed on maternity leave; C3 (African American female) had been on limited duty since 1995; C4 (Caucasian male) was a Motor Vehicle Operator with driving restrictions; and C5 (Indian female) was permitted to work inside for a couple of days because of a temporary condition in late 2008. Regarding claim 1, the Agency determined that Complainant was not similarly situated to the comparators because no other employee granted light-duty status failed to comply with established procedures for requesting light duty, whereas Complainant failed to timely submit a written request for light duty. With respect to claim 2, the decision determined that none of the cited comparators were similarly situated to Complainant.
The decision further found that the Agency provided legitimate, non-discriminatory reasons for its actions for not providing Complainant with light duty in 2008 or 2009, namely, that Complainant failed to provide requested medical documentation in 2008 and there was no work available within her restrictions in 2009. The decision concluded that Complainant failed to prove that the Agency's explanations were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that she was denied a reasonable accommodation when the Agency failed to provide her with light-duty assignments. Complainant maintains that she required a light-duty assignment from February 2008 until June 2008 because of serious anemia, and again in January 2009 because of a serious on-the-job injury of her lower back. Complainant argues that she is an individual with a disability because she has severe anemia that makes it "dangerous to her health" to lift more than five pounds. Complainant also argues that she is disabled because she has a lumbar sprain injury and cannot engage in the major life activities of walking or working while carrying give pounds.
Complainant also maintains that S1 did not search for a light-duty assignment within her restrictions. Additionally, Complainant argues that the Agency's reasons for not providing her with a light-duty assignment are pretextual because the Agency offered no evidence that "any similarly-situated employees have been granted accommodation in the past when positions were available," and Complainant did not engage in any blameworthy conduct in seeking an accommodation. The Agency requests that we affirm its final decision.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
As a preliminary matter, we note that claim 1 arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. However, for purposes of analysis, we assume arguendo and without so finding that Complainant is an individual with a disability and established a prima facie case of discrimination on each alleged basis.1 Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the Station Manager stated that Complainant was not provided with a light-duty assignment from February 23, 2008, through June 2, 2008, because there was no work available within her five-pound lifting restriction. Regarding the Agency's denial of Complainant's request for light duty in 2009, S1 stated that management searched and made inquiries for work within Complainant's restrictions, but work was not available because of the severity of her restrictions.
We note that a review of the record reveals that the comparator C4 was a Full-Time Motor Vehicle Operator and C5 is a Full-Time Flexible Carrier. As such, C4 and C5 are not similarly situated to Complainant, who is a Full-Time City Carrier. Further, there is no evidence that any of the cite comparators had a five-pound restriction. Therefore, we find that Complainant failed to find that C1, C2, C3, C4, or C5 were similarly situated and treated more favorably by the Agency under similar conditions.
Complainant argues that the Agency's reasons for not providing her with a light-duty assignment are pretextual because the Agency offered no evidence that "any similarly-situated employees have been granted accommodation in the past when positions were available." Complainant maintains that the Agency never accommodates disabled employees with light-duty assignments. However, this argument undermines Complainant's contention that she was denied light duty because of sex, national origin, or prior EEO activity. In essence, in order to prove that the Agency's explanation was pretext for unlawful discrimination, Complainant would have to show that there was an available assignment for which she was qualified within her five-pound restriction, and City Carriers outside her protected classes who had a five-pound restriction were provided with an assignment within that restriction. There is no such evidence in this case. Consequently, we find that the Agency properly found that Complainant failed to prove that its explanations were pretext for unlawful discrimination.
Reasonable Accommodation
Complainant's complaint contains the allegation that she was denied a reasonable accommodation for her disabilities. An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that a complainant was denied a reasonable accommodation, the 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 failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance").
In this case, Complainant's 2008 and 2009 requests for light duty were requests for a reasonable accommodation. See Anderson v. Dep't of Veterans Affairs, EEOC Appeal No. 012022715 (March 7, 2013) (request for light duty viewed as request for reasonable accommodation). From February 2008 until June 2008, Complainant was restricted from lifting/pulling/pushing more than five pounds or walking for extended periods of time. In January 2009, Complainant was restricted from lifting more than five pounds. It is undisputed that, during the relevant time periods, Complainant could not perform the essential functions of her City Carrier position because of her restrictions. Because Complainant could not be accommodated in the position she encumbered, the Agency was required to consider the availability of a reassignment as an accommodation.
Complainant maintains that she could have been reassigned to perform work within her restrictions. Complainant has the burden to identify a vacant funded position for which she was qualified and into which she could have been reassigned. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002); see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. Part 1630, at � 1630.2(o). The only work that Complainant identifies within her restrictions was an activity she describes as "boxing up," which involves preparing correspondences for letter carrying and does not require lifting. Complainant's Appellate Brief, p. 3. Complainant maintains that the Agency could have reassigned her to "boxing up" because it allowed her to do this task on February 14, 2008, after it learned of her five-pound lifting restriction. However, the evidence reflects that "boxing up" was merely a holdover activity that the Agency assigned Complainant to perform for a few hours while it ascertained whether there was work available within her restrictions. There is no evidence that "boxing up" was tantamount to an actual position, or that such work was available for Complainant to work beyond a few hours on February 14, 2008.
Further, management attested that it searched for work within Complainant's restrictions, but there was no work available within her restrictions. Additionally, the record reflects that, in early 2009, management attempted to find a position for Complainant by asking several managers if they were aware of available work within Complainant's restrictions. The search did not find any work within Complainant's restrictions. There is no evidence that, during the relevant time period, there was a vacant, funded position within Complainant's work restrictions, with or without reasonable accommodation, to which she could be reassigned. We therefore find that Complainant failed to establish she was denied a reasonable accommodation.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final decision for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 21, 2013
Date
1 Because we assume arguendo that Complainant is an individual with a disability and established a prima facie case of discrimination, we decline to address appellate arguments regarding Complainant's establishment of these elements of her case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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