01992859
02-28-2002
Sadie E. Lockett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Sadie E. Lockett v. United States Postal Service
01992859
February 28, 2002
.
Sadie E. Lockett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01992859
Agency Nos. 1C-451-0286-92; 1C-451-0029-92
Hearing Nos. 220-98-5226X; 220-98-5247X
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.;
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. In her initial complaint (1C-451-0286-92),
complainant alleged she was discriminated against on the bases of race
(Black), sex (female), disability (fibromyalgia, cervical strain and
muscle tension in neck/shoulder) and reprisal (prior EEO activity)
when on August 20, 1997, her medical restrictions were violated and she
was not reasonably accommodated when she was reassigned to the primary
unit from the rewrap section. Complainant then filed a second complaint
(1C-451-0029-92) alleging discrimination on the bases of race, sex and
disability when from October 1, 1996 through December of 1996, she was
repeatedly passed over and denied the opportunity to work overtime in
the rewrap section and primary unit. For the following reasons, the
Commission AFFIRMS the agency's final order.
The record reveals that during the relevant time, complainant was
employed as a Modified Distribution Clerk at the agency's Post Office in
Cincinnati, Ohio (�facility�). In her initial complaint, complainant
alleged that in August of 1997 she was reassigned from to the primary
unit to the rewrap section by agency management. Complainant alleges
that she could not work the primary area for eight (8) hours per day
due to physical restrictions related to injuries to her neck, shoulder
and right knee. She further contends that her restrictions were not
accommodated when she was reassigned to the primary area and thus she
experienced stress which caused her to be absent from work and incur
medical expenses. In her second complaint, complainant alleges that
from October of 1996 through December of 1996, her name was taken off
the overtime desired list and thus she was denied the opportunity to
work overtime in the rewrap section and primary unit. As a result,
complainant asserts that she lost about 178 hours of overtime.
Complainant filed formal EEO complaints with the agency on October 21,
1997 and November 11, 1997, alleging that the agency had discriminated
against her as referenced above. 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.
Regarding claim (1), the AJ concluded that complainant failed to establish
a prima facie case of race or sex discrimination. The AJ found that
while complainant has shown that she is a member of protected groups
and was reassigned to the primary unit in August of 1997, she failed to
show that she was treated differently than similarly situated employees
not in her protected groups. In so finding, the AJ noted that a number
of employees were reassigned to the primary unit at the same time as
complainant. The AJ further found that complainant failed to establish
a prima facie case of reprisal, as she failed to establish that the
management officials involved in making the decision to reassign her
were aware of her prior EEO activity. Addressing complainant's claim
that she was discriminated against due to her disability when she was
reassigned to the primary unit in 1997, the AJ found that complainant
failed to establish that she was an individual with a disability as
defined by the Rehabilitation Act. In so finding, the AJ concluded
that complainant did not present evidence to show that her restrictions
substantially limited one or more major life activities, nor did she
present evidence to show that her restrictions were not accommodated by
the agency when she was reassigned to the primary unit.
Regarding claim (2), the AJ found that complainant failed to establish
a prima facie case of discrimination based on race, sex or disability.
While complainant alleged that she was prohibited from working overtime
during the first quarter of 1996, the AJ found that the evidence of
record shows that complainant did in fact work overtime during this
period in the rewrap unit, but that complainant was restricted regarding
the number of hours she could case mail during an eight hour day and thus
could not work overtime as overtime was reserved for casing. In addition,
the AJ noted that the issue of overtime was grieved by complainant and a
mediation agreement was reached between the parties. The agency's final
order implemented the AJ's decision. Complainant makes no new contentions
on appeal, and the agency requests that we affirm its final order.
ANALYSIS
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).
Regarding complainant's claim (1), the Commission agrees with the AJ's
finding that she failed to establish a prima facie case of race and
sex discrimination, as she failed to establish that she was treated
differently than were other similarly situated employees. We note that
the record establishes that several employees were reassigned to the
primary unit at the same time as complainant, pursuant to an agency
effort to have employees work in a more productive unit. In addition,
we agree with the AJ's finding that complainant failed to establish a
prima facie case of retaliation, as there is no evidence in record to
establish that the managers responsible for reassigning her were aware
of her prior EEO activity.
In addition, regarding complainant's allegations in claim (2), we agree
with the AJ's finding that she failed to establish a prima facie case of
race, sex or disability discrimination, as the evidence establishes that
complainant's name was crossed off the overtime desired list maintained
for the primary unit for the first quarter of 1996, as she was then
not assigned to the primary unit. The AJ noted that agency's collective
bargaining agreement in effect at that time required that an employee must
be assigned to a particular unit in order to be assigned to work overtime
in that unit. Recommended Decision at 14. While complainant alleges
that her name was crossed off the overtime desired list for the primary
unit due to her disability, we note that complainant was restricted as to
the number of hours she could case mail during an eight (8) hour workday.
As a result, we agree with the AJ's finding that complainant's medical
restrictions prevented her from working overtime on the primary unit
as that overtime required casing mail. Further, as noted by the AJ,
the evidence of record establishes that complainant did work overtime
in the rewrap unit she was assigned to during the time in question.<2>
Turning to complainant's claim that she was discriminated against due
to her disability when she was reassigned to the primary unit, the
Commission notes that whether proceeding under a disparate treatment or
reasonable accommodation analysis, complainant must establish that she
is a qualified individual with a disability. After consideration of
the evidence of record, the Commission finds that assuming, arguendo,
that complainant was a qualified individual with a disability, she
failed to establish that she was discriminated against based on her
disability when she was reassigned to the primary unit. We agree
with the AJ's finding that any physical restrictions complainant had
as to lifting, carrying and reaching were accommodated by the agency
in having her perform the Modified Distribution Clerk position in both
the rewrap unit and in the primary unit. The evidence establishes that
complainant's physicians stated that due to her fibromyalgia and cervical
strain, she should stand intermittently, not lift more than 15 pounds,
not reach above her shoulder and not case mail repetitively for more
than three (3) hours. Investigative File, at Exhibits 4-1 through 4-5.
The record is devoid of evidence which establishes that any limitations
she had were not accommodated by the agency when she was reassigned
to the primary unit. Specifically, the record establishes that in
response to complainant's medical restrictions following her initial
injury, the agency offered her a Modified Distribution Clerk position
in the rewrap section, which provided for intermittent sitting, walking,
twisting and standing, with no lifting or carrying over ten (10) pounds
and no reaching allowed. Investigative File, at Exhibit 3-3, 3-4.
Complainant accepted this position in 1992, and there is no evidence in
the record that the agency violated her physical restrictions when it
reassigned her to the primary unit from the rewrap unit in August of 1997.
We note the hearing testimony of complainant's acting supervisor (AS)
that when complainant was reassigned to the primary unit, her position
involved three functions: casing mail, sorting mail and dispatching mail.
Hearing Transcript at 18-19. AS testified that complainant's physical
restrictions in casing mail were accommodated by not allowing her to case
mail for more than three hours per day in an eight hour workday; her
restrictions in sorting mail were accommodated by having another Clerk
do any required heavy lifting while complainant completed the sorting;
and she was not allowed to dispatch mail. Id. In addition, AS stated
that complainant�s restrictions were accommodated by sending her to
the rewrap section on various occasions. Hearing Transcript at 20-21.
As such, the Commission agrees with the AJ's finding that when complainant
presented medical documentation limiting the number of hours she could
case mail, her assignment was modified to accommodate her limitations.
Recommended Decision at 13. As a result, we agree with the AJ's finding
that complainant failed to establish that she was discriminated against
on the basis of disability when she was reassigned to the primary unit
in 1997.
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
February 28, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 The record further establishes that complainant entered into a mediation
agreement with the agency concerning the availability of overtime in the
rewrap unit, and was subsequently permitted to work overtime until 1997.
See Hearing Transcript, at 120.