0120101011
02-28-2013
Valerie Corley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Valerie Corley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120101011
Agency No. 1B069000709
DECISION
On December 19, 2009, Complainant filed an appeal from the Agency's November 19, 2009, final decision 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 decision.
ISSUES PRESENTED
The issues presented are whether Complainant was discriminated against on the basis of physical disability (neck injury) when on January 3, 2009, she was denied a change of schedule as a reasonable accommodation, and when from January 16, 2009 to January 27, 2009, she was not allowed to work because she refused to sign a modified job offer but was subsequently forced to sign the offer.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Stamford Processing and Distribution Center facility in Stamford, Connecticut. On June 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against as articulated above.1
The record reflects that Complainant suffered a job related injury on February 5, 2000 from which she had reached her maximum recovery, with continuing work restrictions. Complainant was offered a rehabilitation job, commencing September 30, 2008. Approximately three months before, Complainant filed a claim in June 2008 regarding the same injuries with the Office of Workers Compensation Program (OWCP). An appointment was made to obtain a second medical assessment of her alleged work related condition, and Complainant was subsequently offered a limited duty offer of a modified work assignment based on the second medical opinion. The second medical opinion modified Complainant's Processing Clerk duties to only require that she: (1) verify waste mail and make copies as needed; (2) sort forwardable mail for CFS processing; (3) sort "Return to Sender" (RTS) rejects, stamp with an RTS finger, and remove ACS mail; and (4) Distribute manual letters and flats as required. This offer required Complainant to sit, stand, walk and reach above the shoulder 8 hours a day, but limited her reaching, bending, stooping, pushing, pulling, lifting and squatting to 4 hours per day and her lifting to not more than 20 pounds. Complainant refused the offer on September 30, 2008, explaining that she disagreed with the second opinion concerning her related injury.
The Office of Workers Compensation Program (OWCP) explained to Complainant that the doctor who rendered the second opinion specialized in orthopedic surgery, and was a more appropriate professional to make a decision regarding her current condition. Approximately one month later the OWCP wrote Complainant stating that a partially disabled employee who refuses or neglects to work after suitable work is offered to, procured by, or secured for her is not entitled to workers compensation. The letter further notified Complainant that she had not provided a valid reason for refusing to accept the offered position; that she had a period of 15 additional days to accept it and make arrangements to report to work; and, that if she did not accept the position and arrange to report for work within 15 days, her workers compensation wage loss and schedule award benefits would be terminated. Complainant did not accept the limited duty offer or report for work and the OWCP issued a decision, dated November 21, 2008, terminating her wage loss and schedule award benefits.
Complainant subsequently returned to work, but refused to sign the limited duty offer (PS Form 2499).2 On January 3, 2009, she requested a temporary schedule change so that she would not have to miss work for a doctor's appointment. Complainant's schedule change request was denied. On Friday, January 16, 2009 Complainant was again presented with the limited duty job offer (PS Form 2499), and she still refused to sign it. Complainant was not permitted to work from January 16, 2009 to January 27, 2009. On January 27, 2009, she returned to work and signed the limited duty offer (PS Form 2499), at which time she stated that she would have her physician review it, and she requested leave for a medical procedure. Complainant did not return to work after January 27, 2009.
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). 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 the Agency subjected her to discrimination as alleged. Specifically, the decision concluded that Complainant failed to establish a prima facie case of disability discrimination with respect to either incident. Additionally, the decision found that assuming Complainant did establish a prima facie case of disability discrimination, Agency management articulated legitimate non-discriminatory reasons for its actions of denying the schedule change request, as well as, denying Complainant the opportunity to work, which Complainant did not establish were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant asks that we reverse the Agency's final decision and find that she was subjected to discrimination when her request for a schedule change was denied, and when she was not permitted to work from January 16, 2009 to January 27, 2009. Complainant states that the Distributions Operation Manager was given a copy of the approved change of schedule to accommodate physical therapy for her injury on January 2, 2009. Additionally, she alleges that she was initially asked to sign the modified job offer on September 30, 2008, and wasn't asked again until January 27, 2009. Complainant states that she signed the offer on September 30, 2008. She alleges that she was asked to report to work on December 24, 2008, and was not given a form to sign. Complainant states that she worked from December 24, 2008 to January 16, 2009 before she was asked about signing a job offer again. At this time, Complainant alleges that she informed the Distributions Operation Manager that she had previously signed the job offer. Complainant states that she wasn't asked about the form again until the January 27, 2009 pre-disciplinary interview (PDI).
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
ANALYSIS AND FINDINGS
Disparate Treatment and Failure to Accommodate
In order to establish a prima facie case of disability discrimination under the Rehabilitation Act, Complainant must demonstrate that: (1) she is an "individual with a disability"; (2) she is "qualified" for the position held or desired, i.e., can perform the essential functions of the position with or without accommodation; (3) she was subjected to an adverse employment action because of his disability; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
For the purposes of analysis, the Commission assumes, but does not find, that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act, and that she established a prima facie case of discrimination based on disability. According to the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix. We find that the Agency provided a legitimate, non-discriminatory explanation for denying Complainant's schedule change request, and prohibiting her from working from January 16 to January 27, 2009 when she refused to sign the limited duty job offer. The Distributions Operation Manager testified that he denied Complainant's request for a change of schedule because she, as well as all other employees, had the opportunity to take leave for doctor's appointments. Complainant's does not dispute that her reason for requesting a schedule change was so that she could attend physical therapy.
To the extent Complainant also maintains that she was denied a reasonable accommodation, we note that the suggestions and preferences of an employee seeking reasonable accommodation are highly relevant and must be considered. See, e.g., Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 6. However, an agency is not required to provide the precise reasonable accommodation an employee wants, so long as the agency provides a reasonable accommodation that is effective. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Mar. 1, 1999) (web version), at 8. It is the agency providing the accommodation which "has the ultimate discretion to choose between effective accommodations ...." 29 C.F.R. � 1630.9 (app.). Here management testified that it permits employees to take leave to attend medical appointments. We find that this option appropriate for Complainant to attend her physical therapy sessions in the instant matter. Therefore, we do not find that Complainant was denied a reasonable accommodation.
Additionally, the Distribution Operations Manager testified that he did not permit Complainant to work from January 16 through January 27, 2009 because she refused to sign the job offer, and he was instructed by the Health and Resources Management Specialist (HRMS) that Complainant could not work without signing the offer. The HRMS corroborated the Manager's testimony and also stated that supervisors were advised that if Complainant continued to refuse to perform the job she had to be sent home. The HRMS testified that the Department of Labor determined that the limited duty job offer was one that Complainant could perform. Finding that the Agency met its burden under the standard, the burden now shifts back to Complainant to prove that the Agency's reasoning is actually pretext for discrimination.
Complainant failed to present any evidence of discriminatory animus on the part of the Agency. Complainant's arguments on appeal do not explicitly contest the Agency's articulated reasons for its actions, and primarily repeatedly assert that the Agency was aware of her disability.3 Complainant alleges that she signed the limited duty job offer on September 30, 2008, but does not include any evidence to support this assertion with her appeal. Ultimately, we find that Complainant fails to satisfy her burden under the standard.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that Complainant has not established that she was discriminated against as alleged. Accordingly, the Agency's final decision is AFFIRMED.
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
___2/28/13_______________
Date
1 Initially, the complaint included two additional allegations, the first allegation was dismissed because of untimely filing, and the second was dismissed as being a collateral attack on another proceeding. Complainant does not seek to appeal the dismissal of these two allegations.
2 The PS Form 2499 is an "Offer of Modified Assignment" (Limited Duty). The purpose of this form is to: (1) promote the timely offer of available limited duty job assignments to injured employees; (2) facilitate service-wide standardization of the method of documenting limited duty job offers; (3) promote and document regulatory compliance with the Federal Employees' Compensation Act (FECA) requirement of timely issuance of limited duty job offers; (4) clarify the precise nature of the limited duty work being offered to an injured employee, including a description of the duties to be performed, specific physical requirements, and special demands of the workload or unusual working conditions; (5) identify the organization offering the position and the location of the job; and (6) document the date on which the job will be available.
3 The Commission notes that it cannot compare Complainant's arguments on appeal to her position during the EEO process because Complainant did not complete the requested EEO Investigative Affidavit.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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