0120110293
01-09-2013
Shawna Walters, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Shawna Walters,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110293
Hearing No. 543-2010-00006X
Agency No. 4G-870-0073-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 17, 2010 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as a City Carrier at the Agency's Coronado Station in Santa Fe, New Mexico.
On May 7, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (Caucasian), sex (female), disability (mental and physical), and in reprisal for prior protected activity when:
1. on or around May 22, 2008, her request for a hardship transfer to the Alamogordo, New Mexico Post Office was denied; and
2. on or around March 28, 2008 and November 4, 2008,1 her request for accommodation was denied.
As a City Carrier, Complainant was responsible for delivering and carrying mail. These activities entailed prolonged standing of three to four hours; lifting and carrying as much as seventy pounds of mail and parcels; and delivery of mail, including some walking. The record reflects that Complainant suffers from depression, insomnia, irritable bowl syndrome, high blood pressure, diabetes, feet problems, neck fusion, tennis elbow, tinnitis, asthma, miner's disease, gastroesophageal reflux disease, carpel tunnel syndrome, allergies, a knee injury and a work-related shoulder injury.
On September 20, 2007, Complainant was released to work with no restrictions. On January 29, 2008, Complainant was released to return to work. Her sole restriction on January 29., 2008, was a limitation to work eight hours per day. In March 2008, Complainant was able to perform her duties of her assigned carrier position as long as she was limited to eight hours per day. Complainant's supervisor stated that Complainant was able to work eight hours per day when her doctor released her and she switched to a route with less walking and more driving to help with her knee.
Complainant's restriction to work no more than an eight-hour day continued to be the sole restriction until September 3, 2008. On September 3, 2008, Complainant was placed on a restriction requiring her to take one day off, upon being administered a prescribed injection, for the ensuing five weeks. On November 4, 2008, Complainant's doctor took Complainant off work. The doctor stated, without further elaboration, that Complainant had been unable to work from October 21, 2008 forward. The doctor's note did not provide any expected duration, or end date when Complainant would be released to return to work. In his case notes, Complainant's doctor merely stated that it "would be a good idea for [Complainant] to have a job which did not require prolonged standing or walking." The record reflects that these case notes were not provided to the Agency and this recommendation was not included in any work restriction. In October 2008, Complainant stopped working because her doctor put her in a "no work" status.
On May 11, 2009, Complainant was scheduled for an investigative interview concerning her failure to return to work or failure to provide sufficient documentation, since October 2008. Complainant provided a Family Medical Leave Act (FMLA) form on May 13, 2009, in which her doctor had placed her on a "no work" status from October 21, 2008, forward. The record reflects that at the time she prepared her affidavit concerning the instant formal complaint, Complainant remained in a "no work" status.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 7, 2010, the AJ issued a decision by summary judgment in favor of the Agency. In his decision, the AJ found that Complainant did not establish a prima facie case of race, sex, disability and reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the AJ noted that Complainant requested a hardship transfer to Alamogordo, New Mexico Post Office, so she could care for her parents. The AJ stated that the Rehabilitation Act does not require the Agency to provide Complainant with an accommodation so she may care for parents, because the obligation to provide an accommodation only applies to qualified applicants or employees with disabilities.
The AJ noted that the Manager, Human Resources, stated that on November 8, 2008, Complainant requested a transfer to the Alamogordo Post Office, with a second choice of the Agency's Holloman Post Office and a third choice of Tularosa. The record further reflects that Complainant was considered for a hardship transfer; however, her request expired on November 8, 2008. Specifically, the Manager stated "under [an Agency] 'eReassign' policy, the request would remain active for one year, unless it was withdrawn by the employee. In [Complainant's] case, the request expired on November 8, 2008." The Manager further stated "there were no vacant City Carrier Craft positions during the time period that [Complainant's] eReassign requests were active. Thus there was no position available to transfer [Complainant] into."
The AJ stated that assuming the Agency had a legal obligation, the Agency articulated legitimate, nondiscriminatory reasons for the denial of Complainant's hardship transfer request. The AJ noted that according to the Agency, it stated that there were no vacant carrier positions during the relevant time period.
The former Postmaster (PM) stated "I am not aware of any transfers between March 1, 2008 and March 21, 2009." PM stated that during the relevant time, he was not aware that Complainant had filed for a hardship transfer. PM further stated "I never denied a request for a hardship transfer as a reasonable accommodation."
The former Acting Station Manager (M1) stated that she offered Complainant an FMLA package because Complainant was not regular in attendance. The record reflects that Complainant's request for FMLA was approved for a period of time until she became ineligible. M1 also stated that she was not aware of any employee being granted a hardship transfer.
Regarding claim 2, the record reflects that Complainant alleged that during a mediation session, she requested a desk job as an accommodation but that PM told her that there were no desk jobs available. The AJ noted that Complainant's March 28, 2008 accommodation request contained insufficient evidence indicating that she was entitled to an accommodation. The AJ noted that from March 28, 2008 to October 21, 2008, Complainant had a knee impairment. The AJ further noted that the January 29, 2008 and July 29, 2008 notes from Complainant's doctor merely stated that she could perform the functions of her position but was limited to an eight-hour work day. The AJ noted that on March 26, 2008, Complainant stated that she could perform the duties of her position. Given these facts, the AJ found there was insufficient evidence to establish that Complainant was substantially limited in walking, working or any other major life activity. Moreover, the AJ determined that Complainant was not disabled during the relevant time period and not entitled to an accommodation.
With respect to Complainant's November 4, 2008 accommodation request, the AJ also found that she was not entitled to a reasonable accommodation. The AJ determined that because Complainant's November 4, 2008 note from her doctor placing her in a "no work" status, failed to establish she is a qualified individual with a disability (i.e. she could not work). The AJ further found to the extent that Complainant may argue that she was a qualified individual with a disability to perform non-carrier work, the record contains no evidence of any specific vacant funded position for which she was qualified and for which she could have been reassigned for the relevant time period.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. Upon review, we find that the AJ properly issued a decision without a hearing because there is no genuine issue of material fact.
On appeal, Complainant argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues "although there may have been other reasons in addition to Complainant's request for a transfer as a reasonable accommodation, the fact remains that Complainant was requesting a reasonable accommodation due to her medical condition." Regarding the Agency's argument that she had not put forth any medical evidence that supports her request for a desk job, Complainant states that "she agreed to sign medical releases so that her doctor could provide any and all medical evidence needed on her case." Finally, Complainant argues that the Agency could have reasonably accommodated her by eliminating the functions of the carrier position she could not perform because of her limitations.
Having reviewed Complainant's appellate arguments regarding the propriety regarding summary judgment, the Commission determines that the AJ properly issued a decision without a hearing in the instant case, as there are no genuine issues of material fact.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination or retaliation.
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order 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 Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance").
Under the Commission's regulations, an Agency is 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. See 29 C.F.R. �� 1630.2(o) and (p). Notwithstanding the AJ's finding that Complainant is not disabled within the meaning of the Rehabilitation Act, we will assume without deciding (for the purposes of this decision) that Complainant is not an individual with a disability and a qualified individual with a disability.
Complainant asserts that she requested a reasonable accommodation when she requested a transfer to be close to her parents and care for them. Assuming, arguendo, that Complainant is a qualified individual with a disability, we find that Complainant did not prove that the Agency denied her a reasonable accommodation. We conclude that there is no duty under the Rehabilitation Act for the Agency to grant Complainant's transfer request because of her parents' illnesses.
We further conclude that if Complainant made a request for a desk job, there is no medical evidence in the record to support that a desk job would be a reasonable accommodation for her. Complainant's only restrictions before she was put on a no work status by her doctor was a limit to eight hours per day, and later a request for one day off after she received an injection. Moreover, other than Complainant's assertions, Complainant has not provided any evidence which shows that vacant funded positions were available.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, 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 Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.2
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 (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 (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
January 9, 2013
__________________
Date
1 Repeated reference is made throughout the record that a reasonable accommodation request was denied on November 4, 2009. Complainant filed the instant formal complaint in May 2009, and it would therefore appear, given a close review of the record, that this denial occurred in November 2008.
2 On appeal, Complainant does not challenge the June 1, 2009 partial dismissal issued by the Agency regarding three other claims (that she was discriminated against on the bases of race, disability and in reprisal for prior EEO activity when on May 5, 2007, she was removed from her route; she was charged Absence Without Leave for January 3, 2008; and on or around January 31, 2008, she was issued a Letter of Warning). Therefore, we have not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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