01A20552
08-28-2003
Michelle Y. Cockrell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michelle Y. Cockrell v. United States Postal Service
01A20552
08-28-03
.
Michelle Y. Cockrell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20552
Agency No. 4K-210-0067-00
Hearing No. 120-A1-4220X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Mail Carrier at the agency's Owings
Mill, Maryland facility, filed a formal EEO complaint on May 30, 2000,
alleging that the agency had discriminated against her on the bases of
race (African-American), color (light complexion), sex (female), and
disability (Chrondomalacia Patella in both knees) when her supervisor
harassed her by:
(1) violating complainant's medical restrictions by requiring her to
stand for longer than allowed by her doctors;
(2) refusing to allow complainant to have required ten minute breaks;
(3) requiring complainant to lift beyond her prescribed limits;
(4) calling complainant names in front of other employees;
(5) starting and spreading inappropriate rumors about the complainant;
(6) sending out letters to other employees stating complainant was
having an inappropriate relationship with a supervisor;
(7) calling complainant's husband and telling him that the complainant
was having an affair which resulted in him battering the complainant.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
With respect to complainant's claim of hostile work environment, the AJ
found that complainant failed to establish that she was subjected to
a hostile work environment based upon her color, sex, and disability.
The AJ concluded that although the testimony of the witnesses were
inconsistent, whenever complainant brought alleged deviations from
her duties and physical restrictions to management, her situation was
promptly rectified. The AJ found that complainant was given a reasonable
accommodation. Furthermore, the AJ found that the alleged harassment with
respect to working complainant outside of her restrictions occurred over
a very short period of time (January 13, 2000 to March 6, 2000) and, based
upon his review of the testimony and the documentary evidence, it did not
amount to a severe and pervasive environment. The AJ concluded that the
other components of the complainant's complaint either were speculative
in nature (i.e., that the supervisor authored the anonymous letter and
called complainant's husband and informed him of the alleged affair
between complainant and a supervisor) or were isolated incidents that
did not cause the complainant any harm, if in fact they occurred (i.e.,
the supervisor calling complainant crazy and rolling her eyes at her).
With respect to complainant's disparate treatment claim, the AJ found that
complainant failed to demonstrate by a preponderance of the evidence that
she was treated differently because of her color, sex, and disability.
The AJ indicated that complainant's own testimony indicated that other
employees (male and female, White and Black), who had work restrictions
were treated harshly by the supervisor.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when he failed to
analyze whether complainant was provided a reasonable accommodation.
Complainant continues to maintain that she was subjected to a hostile
work environment.
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.
Disability Claim
Under the Commission's regulations, federal agencies are required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1614.203(c);
29 C.F.R. � 1630.2(o); 29 C.F.R. � 1630.2(p); see, generally, EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002 (rev. October 17, 2002)
(Guidance). As a threshold matter, one claiming protection under the
Rehabilitation Act must show that s/he is a person with a disability
as defined therein. A person with a disability is one who has, has a
record of, or is regarded as having, a physical or mental impairment
that substantially limits one or more major life activities. 29 C.F.R. �
1614. 203(a)(1). Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F. R. � 1614.203(a)(3).
For purposes of further analysis, we assume without finding that
complainant is a person with a disability. The record shows
that complainant accepted a modified city carrier position which
was approved by her physician.<1> The position had the following
physical restrictions: can work 8 hours/day; sitting continuous,
with 10 minute breaks every hour; walking for 10 minutes every hour;
standing one hour with 10 minute breaks; no pushing/pulling >20
lbs.; Days; no lifting> 10 lbs.; no squatting, kneeling and climbing.
The record shows that there were conflicting interpretations regarding
complainant's physical restrictions. So much so, that complainant was
asked to revisit her physicians regarding her physical limitations.
Physician-1 modified complainant's physical restriction by stating
�in the two hours where complainant is casing mail that she should be
allowed in the two hour time block to stand for one hour and sit for
one hour.� Physician-2 indicated �as her work requires long standing
time, her doctor has given medical advice that she limit her work time
to cycles of one hour, then a ten-minute break.� We agree with the AJ
that complainant was reasonably accommodated, in that all of the work
that she was assigned was within her restrictions and a part of the
modified carrier position. Further, the evidence shows that complainant
was provided a carrier stool when she was casing the mail, so that
she could sit or lean against it while performing the casing function,
although she would have to stand to reach the upper level of a case.
The evidence shows that any assignment that complainant complained about,
i.e. delivering express mail and taking mail out to the carriers, and
pulling down routes, was discontinued even though it was approved as
part of the modified city carrier duties and within her limitations.
Moreover, the record is clear that there was significant confusion as to
exactly what complainant's restrictions were with regarding to standing,
sitting and breaks. To rectify the confusion, the record shows that
complainant was asked to provide clarification from her physicians.
We find a complainant is not entitled to the accommodation of her choice,
and an employer may choose among reasonable accommodations as long as
the chosen accommodation is effective. Guidance, Question 9 (p.17).
Since complainant is disabled in standing and walking, a chair while
casing the mail would have effectively accommodated her and allowed her
to perform the essential duties. We find that the agency met its burden
to accommodate complainant. We note, in addition, that complainant did
not demonstrate that other similarly situated employees were treated
more favorably.
Hostile Work Environment
Harassment of an employee that would not occur but for that
employee's race, color, sex, religion, national origin, age, or
disability is unlawful, if it is sufficiently patterned or pervasive.
Frye v. Department of Labor, EEOC Requst No. 05950152 (February 8, 1996).
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment, unless the conduct in question is very severe.
Backo v. United States Postal Service, EEOC Request No. 05960227 (June
10, 1996). In connection with complainant's work assignments, we
agree that complainant failed to establish a hostile work environment
since the work assignments were within normal business operations and
did not constitute illegal or discriminatory harassment. With respect
to complainant's other issues, i.e., that the supervisor authored the
anonymous letter and called complainant's husband and informed him of the
alleged affair between complainant and her supervisor, the supervisor
calling complainant crazy and rolling her eyes at her, we agree that
these incidents were speculative at best and were isolated incidents
that were not sufficiently severe and pervasive as to create a hostile
work environment.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
race, color, sex or disability. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
___08-28-03_______________
Date
1 The position had the following duties: Casing on auxiliary route unless
instructed by Supervisor. Casing of flat mail on over burden routes as
determined by the Supervisor. Input of AVUS report daily for city and
rural routes. Nixie Mail Processing. Case maintenance (Installation
of case labels on various routes). Basic computer work (input route
information, street supervision reports, input 3930 budget and actual
work hours). Ordering of supplies for carrier operations. Verification
of Delivery Confirmation and Express Mail scanning. Validation of
repair work performed by contractor versus completed Vehicle Repair Tags
(PS Form 4565). Input of overtime authorization and the correcting of
sequence errors from ETC system. Validation of gasoline cost versus the
receipts of gasoline purchases. Answer telephone and assist customers
in resolving complaints and/or providing information.