0120093068
08-10-2011
Markinna Allen, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Markinna Allen,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120093068
Hearing No. 440-2009-00059X
Agency No. Y1-520-0024-08
DECISION
On July 18, 2009, Complainant timely filed an appeal from the Agency’s
June 18, 2009, final order 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
order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the
EEOC Administrative Judge's (AJ) conclusion that Complainant failed to
demonstrate that she was subjected to discrimination on the bases of race,
disability, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Distribution Clerk at the Agency’s J.T. Weeker International Service
Center (ISC), Central Pouching Unit, in Chicago, Illinois. Report of
Investigation (ROI), Ex. 11, at 209. Complainant’s duties as a Clerk
required her to lift packages weighing between 40 and 70 pounds. Hr'g
Tr., at 20. In August 2006, while lifting packages, Complaint sustained
an injury to her lower back. Id. at 16. On July 28, 2008, Complainant’s
doctor found that Complainant was suffering from bilateral carpal tunnel
syndrome and low back pain. ROI, at 29. As a result, beginning on July
28, 2008, Complainant was placed on medical restrictions that limited
her from engaging in repetitive wrist motions and from continuously
standing for more than one hour at a time. ROI, at 20. Complainant was
also placed on a 15-pound lifting restriction. Id.
On September 9, 2008, Complainant asked the Plant Manager if she could
be detailed to an open position in the international records unit that
had been vacated by a retired employee. ROI, Ex. 9, at 207. On September
10, 2008, Complainant’s Supervisor (S1) reassigned Complainant to
light-duty working work manual letter duties, a sedentary assignment,
requiring Complainant to sort outgoing international mail. ROI, at 20. On
September 17, 2008, the Plant Manager denied Complainant’s request to
be detailed to the international records unit, noting that Complainant
had a poor attendance record. ROI, Ex. 9, at 207.
On October 15, 2008, Complainant was reassigned from her manual letter
assignment to the flat sorter machine. Hr'g Tr., at 54. The flat sorter
assignment required Complainant to key in country code numbers on a key
pad to ensure delivery of international mail. Hr'g Tr., at 69. Complainant
felt that the assignment violated her medical restrictions. Hr'g Tr., at
21, 29. On October 11, 2008, in response to S1’s request, Complainant
submitted light-duty documentation noting that she could not lift more
than 10 pounds, engage in repetitive wrist motion, and was restricted
from standing for more than one hour at a time. ROI, at 20. On October
29, 2008, Complainant was reassigned again to a different assignment;
however, she left the Agency before performing the assignment because she
felt that she could not perform the duties due to her restrictions. ROI,
at 34; Hr'g Tr., at 55-57. Thereafter, Complainant resigned from the
Agency. ROI, at 25.
On July 21, 2008, Complainant filed an EEO complaint and subsequently
amended her complaint on November 10, 2008, alleging that the Agency
discriminated against her on the bases of race (African-American),
disability, and reprisal for prior protected EEO activity when:
1. on April 14, 2008, the Plant Manager denied her a detail to the
international records unit;
2. on August 4, 2008, she had not been provided with reasonable
accommodation;
3. on August 8, 2008, she was instructed to perform duties outside of
her medical restrictions; and
4. on October 18, 2008, she was sent home and told that there was no
work available for her within her restrictions.1
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).
Complainant timely requested a hearing, which the AJ held on May 19,
2009. The AJ issued a decision in favor of the Agency on June 2, 2009.
The Agency subsequently issued a final order fully implementing the AJ’s
finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.
With respect to claim 1, the AJ noted that the Plant Manager assigned a
coworker to the international records unit without any competition. AJ’s
Decision, at 16. The AJ noted that the Plant Manager was not considering
Complainant for any detail position because of her poor attendance
record.2 Id. The AJ also noted that the selected coworker had already
been assigned to the detail when Complainant asked for it; therefore, the
position was not vacant. Id. The AJ noted that although the coworker’s
assignment created the perception of favoritism, there was no evidence
that it was motivated by discriminatory animus. Id. Regarding claims
2 and 3, the AJ noted that S1 reasonably accommodated Complainant for
her disability. Id. at 17. In particular, the AJ noted that S1 allowed
Complainant to work at her own pace and not do anything that violated her
medical restrictions. Id. at 18. The AJ noted that whenever Complainant
advised S1 that she could not perform a certain function, S1 promptly
reassigned her to perform a different task. Id. The AJ noted that when
Complainant told S1 that she could not perform her duties in Central
Pouching, she was assigned to manual letters. Id. Further, the AJ noted
that when Complainant was no longer able to sort international mail,
S1 found her a different assignment keying in country codes. Id.
The AJ also noted that Complainant wanted to be assigned away from a
floor position to an administrative position. Id. at 19. The AJ noted
that such an administrative position would have required Complainant to
perform repetitive motions such as typing, writing, and lifting. Id. at
19-20. Additionally, the AJ noted that the Agency was not required to
provide Complainant with an accommodation of her choice. Id. at 20. The
AJ further noted that Complainant failed to identify a vacant funded
position that the Agency could provide her. Id. Regarding claim 4, the
AJ noted that Complainant was not denied work on October 18, 2008, but
refused to work the light-duty assignment provided to her. Id. at 20-21.
CONTENTIONS ON APPEAL
On Appeal, Complainant contends that she was receiving cortisone shots
in her hands and could not perform the duties of the assignments to which
the Agency reassigned her. Complainant’s Appeal Brief, at 1-2. Further,
Complainant contends that the detail to the international records unit was
not posted and open for all employees. Id. at 2. Complainant also contends
that another employee was awarded a detail and allowed to be absent for
an extended period of time while she was not. Id. at 3. Additionally,
Complainant contends that she was forced resign because the Agency failed
to provide her with an effective reasonable accommodation. Id. at 4.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Chap. 9, § VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment (Claim 1)
To prevail in a case such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a
prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed with in this case,
however, since the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming, arguendo, that Complainant established a prima facie case
of discrimination based on race, disability, and reprisal, we find
that the Agency articulated legitimate, nondiscriminatory reasons for
its actions, as set forth above. Specifically the Agency explained
that the Plant Manager was not considering Complainant for any detail
position because of her poor attendance record prior to any request for
reasonable accommodation. Complainant now bears the burden of proving by
a preponderance of the evidence that the Agency’s articulated reasons
were a pretext for discrimination. Complainant can do this directly
by showing that the Agency’s proferred explanation is unworthy of
credence. Burdine, 450 U.S. at 256.
In an attempt to show pretext, Complainant contends that the international
records unit detail she requested was not posted and open for all
employees. Complainant also contends that another employee was awarded a
detail and allowed to be absent for an extended period of time while she
was not. Although the detail was non-competitively awarded, Complainant
has not presented any evidence to prove that discriminatory animus was the
motivation for the assetted pre-selection. Further, the record reflects
that the selected employee was already detailed to the position when
Complainant asked to be detailed to it. Hr'g Tr., at 36. Also, there is
no dispute that the other employee that Complainant cites was absent for
an extended period of time because she had cancer. Complainant’s Appeal
Brief, at 3. Therefore, the Commission finds that substantial evidence
in the record supports the AJ's determination that Complainants failed
to prove that the Agency's explanation was pretext for discrimination.
Reasonable Accommodation (2, 3, and 4)
To establish that complainant was denied a reasonable accommodation,
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 EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002).
The term “qualified individual with a disability,” with respect to
employment, is defined as a disabled person who has the skill, educational
background, and work experience required for a position held or desired
and who, with or without a reasonable accommodation, can perform the
essential functions of the position. 29 C.F.R. § 1630.2(m).
Assuming, without so finding, that Complainant was disabled within the
meaning of the Rehabilitation Act, we conclude that Complainant has
not proven, by a preponderance of the evidence that she was a qualified
individual with a disability. It is undisputed that Complainant could
no longer perform the essential functions of her Distribution Clerk
position with or without reasonable accommodation. However, with respect
to whether Complainant is a qualified individual with a disability, the
inquiry is not limited to the position actually held by the employee,
but also includes positions that the employee could have held as a result
of job restructuring or reassignment. See Van Horn v. U.S. Postal Serv.,
EEOC Appeal No. 01960159 (Oct. 23, 1998). The record reflects that S1
reassigned Complainant to light-duty working manual letter duties in
an attempt to accommodate her. Hr'g Tr., at 78. Complainant requested
to be reassigned from the manual letter assignment because it bothered
her hands. Id. Thereafter, S1 reassigned Complainant again to another
assignment requiring her to key in country code numbers on a key pad to
ensure delivery of international mail. Complainant could not perform the
duties of the keying reassignment because it bothered her hands. Hr'g
Tr., at 54. As a result, S1 attempted to reassign her again; however,
Complainant left the Agency before performing the reassignment, feeling
that she could not perform the duties due to her disability. ROI, at 34;
Hr'g Tr., at 55-57.
We note Complainant does not dispute that she could not perform the
duties of the assignments that she was reassigned to due to her strict
medical restrictions. Complainant’s Appeal Brief, at 1-2. Further,
Complainant did not identify any vacant funded positions for which
she was qualified and could have been reassigned. Although Complainant
may have wanted to be assigned to an administrative position, such a
position would have required Complainant to use her hands performing
repetitive motions including typing, writing, and lifting. Hr'g Tr.,
at 87. We also note that, notwithstanding Complainant’s contention,
the record reflects that Complainant left work voluntarily of her own
accord because she could felt that she could not perform the duties of
her light-duty assignment.
We therefore conclude that Complainant failed to carry her burden of proof
to establish, by a preponderance of the evidence, that she was a qualified
individual with a disability within the meaning of the Rehabilitation
Act. Thus, substantial evidence supports the AJ’s conclusion that the
Agency did not fail to provide Complainant a reasonable accommodation
under the Rehabilitation Act.
CONCLUSION
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 order adopting the AJ’s 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 (Nov. 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
August 10, 2011
Date
1 The AJ framed claim 4 as Complainant was sent home on October 18, 2008;
however, the Report of Investigation framed the claim as Complainant
was sent home on October 11, 2008.
2 The Plant Manager referred to Complainant’s attendance record
related to her back injury. The AJ noted that there was no evidence
that Complainant had requested reasonable accommodation related to her
back injury prior to the April 2008 request for reassignment.
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0120093068
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093068