0120071405
05-15-2009
Norma Guerrero, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Norma Guerrero,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120071405
Agency No. 1F853002706
DECISION
On January 22, 2007, complainant filed an appeal from the agency's
December 28, 2006 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
On July 28, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Hispanic), national origin
(Hispanic), and disability (bilateral Carpal Tunnel Syndrome) when: (1)
on February 20 and 22, 2006, she was removed from the Tour Superintendent
Office and made to work in a different area, and on February 22, 2006,
she was reassigned to the same work area where her on-the-job injury
occurred; and (2) the Manager of Distribution Operations (M1) tried
to force her to work a job offer without clearance from her doctor and
threatened that she would not get paid for refusing a job offer.1
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
Issue 1
Complainant alleged that on March 17, 2006, the Acting Supervisor of
Distribution Operations (S1) presented her with a letter stating that
she was to return to work on the workroom floor. Complainant further
testified that she informed S1 that her physician (P1) had to approve this
new job offer and that she had an appointment with him on or around April
7 or 8, 2006. Complainant further alleged that on April 12, 2006, S1
came into the office to ask about the status of complainant's physician's
review and she told him to speak with the Injury Compensation Specialist
(ICS).
M1 testified that she made the decision to reassign complainant to a
different job. M1 stated the Injury Compensation Office provided her with
complainant's restrictions, and she was informed that the job was within
complainant's restrictions. M1 further testified that, while complainant
informed her that she could not perform the job, she failed to produce
additional documentary medical evidence despite numerous requests.
After waiting over a month for the requested medical documentation,
M1 reassigned complainant to "waste mail."
M1 also stated that, although complainant had been working in the Tour
Superintendent's Office, her actual job assignment was to perform work
in Manual Operations. M1 testified that during the relevant time period
all employees with on-the-job injuries were being required to update their
restrictions and were provided work in their original Pay Location (P/L).
M1 testified that complainant was never assigned back to the area where
her injury occurred, but that she was assigned to the same P/L with
different job duties within her medical restrictions. M1 noted that
complainant never actually held a position in the Tour Superintendent's
Office and contractually should not have been working in that office.
M1 further stated that she had received grievances from the American
Postal Workers Union (APWU) that complainant was doing Clerk work in
the office because she had been working in the office instead of the
relief employee who held the bid job. M1 testified this became a problem
contractually and there was never a need for complainant to work there
to begin with. However, complainant was provided work there because of
her on-the-job injury.
Issue 2
Complainant alleged that, on June 2, 2006, M1 informed her that she was
reassigning complainant and that she had another job offer for her.
Complainant further asserts that she advised M1 that she was already
placed in an assigned job from the Department of Labor (DOL). According
to complainant, M1 stated that as of June 5, 2006, she wanted complainant
back on the workroom floor. Complainant further claims that M1 told
her that if she failed to accept the job offer she would not get paid.
M1 testified that she did not force complainant to do work without
clearance from her physician, nor did she threaten complainant in any
manner. Rather, M1 states that she offered complainant work within her
medical restrictions. M1 also stated that she explained to complainant
that if she refused a job offer that the Injury Compensation Office
provided to her and she was physically capable of doing the job she would
be sent home. M1 also states she told complainant that she could not
pick which "room" she worked in, and that the only difference in the job
offer was the location on the workroom floor. M1 stated she would not
pay an employee to stay home if it was their choice, and in this case,
it would have been a personal choice that did not have anything to do
with complainant's restrictions. M1 further stated that complainant did
not provide any new documentation to substantiate her claim for further
restrictions at that time.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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").
Disability Claim
As an initial matter, in order to prove a violation of the Rehabilitation
Act, complainant must establish that she is a "qualified individual
with a disability" within the meaning of the Rehabilitation Act.
An "individual with a disability" is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. 29
C.F.R. � 1630.2(i). A "qualified" individual with a disability is one
who satisfies the requirements for the employment position she holds or
desires and can perform the essential functions of that position with
or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
A Federal agency must make reasonable accommodation for the known
physical or mental limitations of a qualified employee unless the agency
can demonstrate that the accommodation would impose an undue hardship
on the operation of its program. 29 C.F.R. � 1630.9(a). Reasonable
accommodation includes, inter alia acquisition or modification of
equipment. 29 C.F.R. � 1613.704(b); See also, Lowery v. United States
Postal Service, EEOC Appeal No. 01961852 (October 31, 1997).
We find that complainant failed to present sufficient evidence in
support of a reasonable accommodation claim. Assuming for purposes
of this decision that complainant is an individual with a disability
within the meaning of the Rehabilitation Act, the record nevertheless
shows that complainant failed to provide the agency with sufficient
medical documentation in response to M1 and S1's requests for additional
information. Moreover, the evidence in the record is insufficient
in proving that complainant was required to perform tasks outside her
medical restrictions. Accordingly, the record does not support a finding
that complainant was denied a reasonable accommodation.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
The agency articulated a legitimate, non-discriminatory rational for its
decision to reassign complainant (i.e., complainant was not needed in
her current position and other employees had greater contractual rights
to the desired position over complainant). Moreover, complainant failed
to present evidence to show that management's explanation was pretext
or based upon discriminatory animus.
CONCLUSION
Accordingly, upon review of the record we conclude that the preponderance
of the evidence does not establish that discrimination occurred.
Accordingly, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
May 15, 2009
Date
1 On February 21, 2006, complainant raised an additional allegation as
follows: M1 stated that another reason for removing complainant from the
Tour Superintendent Office was because complainant had been overheard
saying that "all supervisors are assholes." The agency dismissed this
claim on the grounds that it failed to state a claim upon which relief
could be granted. We agree with the agency in concluding that this
allegation does not state a cognizable claim under 29 C.F.R. � 1614.103
or 1614.106(a). We also note that complainant does not raise this issue
on appeal.
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0120071405
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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