0120070161
12-03-2008
Michele L. Szafran, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Michele L. Szafran,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120070161
Hearing No. 230-2005-00270X
Agency No. 4J-481-0060-05
DECISION
On October 10, 2006, complainant filed an appeal from the agency's
September 25, 2006 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. 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 order.
On May 11, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of sex (pregnancy)1 when, from
February 16, 2005 through April 16, 2005, her employment as a part-time
flexible city carrier at the Taylor, Michigan Post Office was delayed.
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). Complainant timely
requested a hearing and the AJ held a hearing on June 28, 2006 and issued
a decision on September 14, 2006.
The AJ found that complainant established a prima facie case of
sex discrimination. The AJ next found that the agency articulated a
legitimate, nondiscriminatory reason for its action. Specifically,
the Supervisor of Customer Service (S1) selected complainant for the
position of part-time flexible city carrier. On February 16, 2005,
complainant reported to the medical unit for a physical examination.
During the examination, the agency discovered that complainant was four
months pregnant. Complainant stated that at that time she provided
the Occupational Health Nurse a note from her doctor indicating that
she had no current medical restrictions.2 Complainant was given a
medical release to complete as well as several documents to give to
her physician to complete. Complainant was instructed to have her
doctor review the functionality requirements (position description) of
the job and to complete the Request for Medical Information (RMI) form
assessing whether she could perform the job with or without restrictions.
Complainant's doctor indicated, on February 17, 2005, that complainant was
experiencing a "stable, normal pregnancy" with "no current restrictions."
The Medical Unit physician (MP) then contacted complainant's doctor by
telephone because the medical information provided did not conform to the
RMI form. MP requested information concerning how many pounds complainant
could carry, push and pull without injury or harm to her pregnancy.
Complainant's doctor submitted a statement restricting complainant to
carrying 10 to 20 pounds and pushing or pulling up to 25 to 30 pounds.
MP concluded based on this information, that complainant was at moderate
risk. The Human Resources Specialist found that complainant did not
meet the functional requirements of the position. On February 27, 2005,
complainant submitted a written request for reconsideration. By letter
dated March 22, 2005, complainant's doctor notified the Medical Unit that
complainant did not have any medical restrictions. Complainant began
her job as a city letter carrier on or about April 16, 2005.
The AJ found that complainant failed to establish that the agency's
asserted reasons were pretextual. The AJ noted that the Occupational
Health Nurse insisted in credible testimony that the medical statement
that complainant gave her did not state that she was pregnant, nor
indicate a due date. Likewise, MP credibly testified that the initial
doctor's note provided by complainant did not contain a prognosis or
due date. MP testified that she contacted complainant's doctor twice,
only because agency policy required that the doctor complete the medical
evaluation in accordance with the RMI, and she wished to ensure that
the doctor was aware of the functionality requirements of the position
at issue. The AJ also noted MP's testimony that she has certified
numerous employees to work during their pregnancies. The AJ concluded
that complainant failed to prove that the agency's actions were motivated
by discriminatory animus. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
On appeal, complainant insists that the positions of rural carrier
and city carrier are basically identical, and notes that she had been
performing the duties of a rural carrier associate during her first
months of pregnancy. Complainant also suggests that her doctor was
pressured by MP to place restrictions on her. She also indicates that
she never gave MP permission to contact her doctor.
In response, the agency contends that substantial evidence in the record
supports the AJ's findings. The agency asserts that the challenged action
occurred because of the restrictions placed by complainant's doctor,
and once complainant's doctor removed the restrictions, complainant
was hired.
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 110, Chapter 9, � VI.B. (November 9, 1999).
Initially, we note that complainant does not contend that due to
symptoms related to her pregnancy, she was entitled to the protections
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.3 Nevertheless, we will briefly address
complainant's contentions that the agency made improper medical inquiries.
According to the Commission's Enforcement Guidance on Disability Related
Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act No. 915.002 (July 26, 2000), "[a]t the second stage
(after an applicant is given a conditional job offer, but before s/he
starts work), an employer may make disability-related inquiries and
conduct medical examinations, regardless of whether they are related to
the job, as long as it does so for all entering employees in the same
job category." The Guidance also indicates that "[d]isability-related
inquiries and medical examinations of employees must be "job-related
and consistent with business necessity." Complainant implies that she
should not have had to take a medical examination at all, because she had
already been working as a rural carrier. However, there is no evidence
to indicate that other employees are not also required to undergo a
medical examination when switching from rural carrier to city carrier.
Accordingly, we find no basis to conclude that the examination was
improper.
Regarding the agency doctor's follow-up telephone contact with
complainant's doctor, we discern nothing improper about the contact
because the AJ found credible the doctor's testimony that they required
confirmation that complainant's doctor had reviewed the job description
when he concluded that complainant had no medical restrictions.
This medical inquiry was consistent with business necessity, and not in
violation of the Rehabilitation Act.
In the instant case, assuming complainant can establish a prima facie
case of discrimination, substantial evidence of record indicates that
complainant's employment was delayed because the agency believed based
on the restrictions imposed by complainant's own doctor, that she could
not currently perform the job in question.4 After a review of the record
in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission
to affirm the final agency order because the Administrative Judge's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 3, 2008
__________________
Date
1 The Pregnancy Discrimination Act (Pub.L. 95-955) is an amendment
to Title VII which prohibits, among other things, discrimination in
employment because of sex. The Pregnancy Discrimination Act makes it clear
that "because of sex" or "on the basis of sex," as used in Title VII,
includes "because of or on the basis of pregnancy, childbirth or related
medical conditions." Therefore, Title VII prohibits discrimination in
employment against women affected by pregnancy or related conditions.
2 Complainant contends that this note also indicated her due date.
However, agency witnesses deny that the note originally indicated a
due date. The record contains two different notes, one with a due date
and one without a due date. The Occupational Health Nurse testified
that she herself inserted the due date on the note, after complainant
disclosed her pregnancy and due date to her.
3 We note that pregnancy itself is not a "disability" for purposes of
the Rehabilitation Act, and claims of employment discrimination based
on pregnancy are covered by Title VII. See Appendix to 29 C.F.R. Part
1604, Questions and Answers on the Pregnancy Discrimination Act; EEOC
Compliance Manual on Definition of the Term "Disability", No. 915.002
at n.10 (March 14, 1995).
4 Complainant argues and attempts to puts forth evidence that the
agency doctor pressured her doctor to impose restrictions by discussing
"liability" with him. However, even assuming the doctor did experience
some feeling of pressure, there is no indication that complainant's doctor
was forced to impose restrictions, and it was the doctor's decision to
impose restrictions which led directly to the delay of complainant's
employment.
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0120070161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036