0120112075
08-17-2011
Tannie L. London, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Tannie L. London,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120112075
Hearing No. 410-2010-00157X
Agency No. 4H-300-0175-09
DECISION
On February 28, 2011, Complainant filed an appeal from the Agency’s
February 3, 2011, final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Sales and Distribution Clerk Associate at the Agency’s
Glenridge Post Office in Atlanta, Georgia. The record indicated that
Complainant informed the Agency of her condition in 2005. In March 2009,
Complainant reported to work at the Glenridge facility working for her
supervisor (Supervisor). The record indicated that Complainant was
given assignments which she believed were outside of her limitations.
As a result, Complainant informed the Supervisor that the duties exceeded
her limitations. The Supervisor inquired about Complainant’s medical
condition which Complainant explained had been approved under the Family
Medical Leave Act (FMLA). The Supervisor accessed Complainant’s
information but discovered that Complainant’s FMLA certification had
expired. As such, the Supervisor requested that Complainant provide
medical documentation on May 12, 2009.
Complainant provided the Supervisor medical documentation on May 21, 2009,
indicating that Complainant was limited in bending, lifting more than
15 pounds, no repetitive reaching, and no pushing or pulling of heavy
equipment. The Supervisor reviewed document with the Station Manager
(Manager). They determined that Complainant needed to provide the Agency
with light duty paperwork. Complainant attempted to return to work on May
26, 2009, without the paperwork. Complainant was not permitted to work.
Complainant subsequently provided a light duty request on May 29, 2009.
The Agency denied the request on June 12, 2009. The Agency indicated
that it could not provide Complainant with work within her restrictions.
Complainant remained off work until November 2009, when Complainant bid
into another position at a different Agency facility.
Believing she was subjected to discrimination, Complainant contacted
the EEO Counselor. When the matter could not be resolved, the EEO
Counselor issued Complainant a Notice of Right to File. On August 20,
2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (herniated
disc/scoliosis/arthritis) when, on May 26, 2009, Complainant was sent
home and, subsequently, on June 12, 2009, Complainant was not provided
a reasonable accommodation of a light duty assignment.
At the conclusion of the investigation, the Agency provided Complainant
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 December 10,
2010, and issued a bench decision on December 17, 2010, which was mailed
to the parties on January 26, 2011. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
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, at § VI.B. (November
9, 1999).
The Commission notes that 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 EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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(c) and (p). For
purposes of analysis, the Commission shall assume, without so finding,
that Complainant is an individual with a disability.
To the extent Complainant alleged that she was denied a reasonable
accommodation when she was not permitted to work after May 2009,
upon review of this matter, the Commission concludes that Complainant
has failed to prove that she was denied a reasonable accommodation in
violation of the Rehabilitation Act. Complainant testified as to duties
within her position she could perform. However, the Agency officials
testified that Complainant could not perform all the functions of her
Sales and Distribution Clerk Associate position. The Agency indicated
that Complainant could be provided with two hours of work assignments
within her restrictions; however, they could not provide her with more.
As such, the Agency found that there was no light duty assignment that
would have permitted Complainant to perform her position. In addition,
Complainant she failed to show that there was a vacant funded position
to which she could have been reassigned.
Further, the Agency's request for updated medical documentation in
May 2009, was appropriate under the Rehabilitation Act. The record
indicates that it had been years since Complainant had provided the
Agency with updated medical information. Complainant refused to provide
updated medical documentation and consequently, was placed in off-duty
status. The record indicated that the Agency was unable to determine
if Complainant would need additional accommodations or whether she
could return to full duty without the updated medical documentation.
The Agency needed updated medical documentation to evaluate Complainant's
requested accommodation in light of her medical needs so that it could
determine what accommodation would best serve the needs of the Agency
and Complainant. EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act, EEOC
No. 915.002, Question 6 and 8 (as revised Oct. 17, 2002). As such,
we find that the Agency’s request for documentation in May 2009,
did not constitute a violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
the Agency’s final action implementing the AJ’s decision finding
no discrimination.
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
August 17, 2011
__________________
Date
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0120112075
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112075