0120112352
05-03-2013
Victoria M. Bingham, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Victoria M. Bingham,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120112352
Hearing No. 430-2009-00395X
Agency No. 4K-280-0001-09
DECISION
Complainant timely filed an appeal from the Agency's final order 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and VACATES in part the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ) conclusion that Complainant failed to establish that she was subjected to discrimination on the bases of sex, age, and reprisal; (2) whether Complainant's allegation of disability discrimination should be remanded to determine if it should be subsumed into a pending class complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Post Office in Kings Mountain, North Carolina. Report of Investigation (ROI), at 8. Complainant's duties as a Rural Carrier included sorting mail, loading mail, and lifting parcels weighing up to 70 pounds. Id. at 378.
In September 2006, Complainant was in a work-related car accident while delivering mail. Hr'g Tr., at 10. As a result, Complainant began to experience problems with her left shoulder, and subsequently had shoulder surgery. Id. at 11. Complainant also began to experience back, knee, and spinal trouble as a result of the car accident. Id. at 11-12
Complainant was assigned work-restrictions related to her back and shoulder injuries. Complainant could only stand and walk for 15 minutes and used a cane. Id. at 1-13. Complainant also wore a knee and back brace. Id. Complainant had trouble performing tasks that required bending, squatting, or lifting her arms above her head. Complainant also was unable to twist, squat, or stoop. Id. Further, if Complainant fell, she was unable to get up on her own, and also had muscles spasms. Id.
When Complainant returned to work after her shoulder surgery in March 2007, she was unable to perform the duties of a Rural Carrier because of her medical restrictions. Id. at 9. Shortly thereafter, the Agency assigned Complainant to a modified clerk position, performing mark-ups and stamp destruction. Id. Complainant performed the duties of this modified clerk position for almost two years. Id. at 338.
In April 2008, the Agency informed Complainant that from May 12, 2007, to August 15, 2007, she had been paid on occasions by both the Agency and workers' compensation. Id. at 187-88. The Agency subsequently informed Complainant that it would offset her salary to collect the $3,380.92 in overpayment, and issued a W-2 to Complainant showing the corrected amount.
Complainant had filed a previous EEO complaint, which was resolved by settlement agreement.1 ROI, at 17. The settlement agreement provided that Complainant would be assigned to a supervisory detail. Id. In accordance with the agreement, in June 2008, Complainant was assigned to a detail as a supervisor at the Agency's Stanley Post Office. Hr'g Tr., at 15. While at the Stanley Post Office, Complainant told the Station Manager that she was suppose to be paid at level EAS-17 in accordance with the settlement agreement. Id. at 16. The Station Manager thereafter changed Complainant's pay from EAS-15 to EAS-17. Id.
In October 2008, Complainant was assigned to a detail as a Customer Service Supervisor at the Agency's Belmont Station. Id. at 20. Subsequently, the Belmont Station's Officer-in-Charge (OIC) informed Complainant that her pay would be adjusted because she was being overpaid. The OIC told Complainant that she would no longer be paid at the EAS-17, but would be paid at the EAS-15 level plus 5 percent. Id. at 158-160. On December 10, 2008, the Kings Mountain Postmaster gave Complainant a Letter of Demand, indicating that the Agency intended to the collect the afore-mentioned $3,380.92 of overpayment from her. Id. at 66.
On March 20, 2009, Complainant accepted the Postmaster's offer for a limited-duty assignment in a modified Distribution/Window Clerk position. Id. at 74-77. However, the Postmaster later rescinded the offer because the position reportedly violated the collective bargaining agreement. Id. In April 2009, Complainant continued with her detail at the Agency's Belmont Post office. Id. at 27. In May 2009, the OIC informed Complainant that she owed the Agency $597.00 related to being paid at the EAS-17 level during her detail to the Stanley Post Office. Id. at 117-18.
On May 5, 2009, Complainant's Supervisor at the Kings Mountain Post Office offered Complainant a modified Rural Carrier position. ROI, at 30. However, Complainant declined the modified position, believing that some duties required her to work outside of her medical restrictions. Id. On May 21, 2009, Complainant's Supervisor provided Complainant with a re-written modified Rural Carrier position. Id. Complainant again declined the position, believing that the duties violated her medical restrictions. Id.
On June 12, 2009, Complainant met with some members of the Agency's District Reasonable Accommodation Committee (DRAC). Hr'g Tr., at 355-56. Therein, the DRAC advised Complainant that the May 21, 2009, modified offer was consistent with her medical restrictions. The DRAC also asked Complainant what positions she could perform that would accommodate her shoulder and back conditions. Complainant told the DRAC about her supervisory details and work within the stamp destruction unit, and also mentioned that the offer of a modified-clerk position had been rescinded. On July 10, 2009, the Agency's Labor Relations Specialist sent Complainant a letter on the DRAC's behalf. Id. at 88. Therein, the Specialist noted that the DRAC found that the May 12, 2009, offer was within Complainant's medical restrictions. Id.
On December 31, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated and subjected her to harassment on the bases of sex (female), disability, age (48), and reprisal for prior protected EEO activity when:
1. On July 23, 2008, she was notified that she was overpaid in the amount of $3,707.00, and on December 1, 2008, she was issued a Letter of Demand;
2. On or around September 16, 2008, she was charged with an overpayment;
3. On or around September 16, 2008, to the present, she was denied reasonable accommodation because management failed to place her in a permanent position within her restrictions;
4. On January 20, 2009, she was notified that although she was placed on an EAS-17 detail assignment, her pay was decreased by approximately $3000.00;
5. On or about March 25, 2009, she was notified by management that she owed an additional payment of $597.00;
6. In late March 2009, she received notification that pay reported to the IRS was not correct;
7. On April 4, 2009, she was told she could not assume the permanent modified position she accepted on March 20, 2009;
8. On April 4, 2009, her modified position was cancelled;
9. The first week of May 2009, she was instructed to sign a repayment form for overpayment of wages;
10. On May 15, 2009, her EAS-17 detail assignment was terminated;
11. On May 18, 2009, she was directed to report to work as a modified Rural Carrier that was outside of her restrictions, denying her reasonable accommodation;
12. On May 18, 2009, management rejected her request for duty assignment within her medical restrictions and informed her there was no work available for light duty Rural Carriers; and
13. On May 19, 2009, she was forced to take leave when management again informed her there was no work available for light duty Rural Carriers.
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. The AJ held a hearing on July 26-27, 2010, and on August 12, 2010, and thereafter issued a decision on February 24, 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.
Specifically, with respect to claims 1-2, 5-6, and 9, the Agency determined that Complainant had been paid by both the Agency and workers' compensation for several days in 2007. The AJ noted that the Agency told Complainant that it intended to collect the amount of the overpayment. The AJ noted that the Agency issued a corrected W-2 to reflect the changes to Complainant's pay. The AJ found that Complainant failed to provide evidence establishing that the Agency's actions were based on her sex, age, disability, or prior EEO activity with respect to claims 1-2, 4-6, and 9.
Regarding claim 4, the AJ noted that the OIC credibility testified that he changed Complainant's pay grade from level 17 to level 15 because he determined that Complainant was being paid incorrectly. The AJ noted that Complainant alleged that, according to a settlement agreement from Complainant's prior discrimination complaint, she was supposed to be paid at the level 17 pay rate. The AJ noted that the OIC credibly testified that, according to Agency policy, an employee who is detailed to a position within the EAS schedule receives a salary increase equal to five percent of the employee's regular salary. The AJ noted that there was no evidence that the OIC was aware of the previous settlement agreement. The AJ found that Complainant failed to present evidence showing that the OIC acted with discriminatory or retaliatory animus regarding claim 4.
With respect to claims 3, 7, 8, and 10-13, the AJ also found that Complainant failed to proffer any probative evidence to support her assertion that the Agency was motivated by discriminatory animus. The AJ further found that Complainant failed to establish that she is a "qualified individual with a disability," and therefore the Agency did not have an obligation to reasonably accommodate her under the Rehabilitation Act. In particular, the AJ noted that Complainant was satisfied with the Agency's accommodation efforts up until May 15, 2009. The AJ noted that on May 5, 2009, Complainant was offered a limited-duty assignment as a Rural Carrier, which she refused, believing that some of the duties violated her restrictions. The AJ noted that Complainant testified that she could no longer deliver the mail.
CONTENTIONS ON APPEAL
Complainant has not filed a brief on appeal.
STANDARD OF REVIEW
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, Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment and Harassment (claims 1-2, 4-6, and 9)
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency noted that Complainant had been paid by both the Agency and workers' compensation for several days in 2007. Hr'g Tr., at 187-89. The Agency told Complainant that it intended to collect the amount of the overpayment from him. The Agency issued a corrected W-2 to reflect the changes to Complainant's pay. The Agency also noted that according to policy, an employee who is detailed to a position within the EAS schedule usually receives a salary increase equal to five percent of the employee's regular salary. Id. at 157-60.
Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256. We find that the AJ's determination that Complainant failed to establish pretext as to these claims is supported by substantial evidence in the record. We note that Complainant does not dispute that she received workers' compensation. Hr'g Tr., at 10. We further note that that there is no evidence that the OIC was aware of the settlement agreement providing that Complainant was supposed to be paid at level 17 EAS, or that he acted with discriminatory or retaliatory animus. Hr'g Tr., at 156-66. We can find no evidence contained in the record that the Agency was motivated by discrimination here based on sex, age, or reprisal.
Further, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).
Reasonable Accommodation (claims 3, 7, 8, and 10-13)
The Commission takes administrative notice here, that the claims raised in Complainant's complaint are similar to claims raised in the class complaint, McConnell, et. al. v. U.S. Postal Serv. (Agency No. 4B-140-0062-06). Commission records indicate that in 2004, the Agency began the development of the National Reassessment Process (NRP), an effort to "standardize" the procedures used to assign work to injured-on-duty employees. In the class complaint, the class members claimed that the Agency failed to engage in the interactive process during the NRP process in violation of the Rehabilitation Act. Further, the Agency allegedly failed to reasonably accommodate class members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ) granted class-certification in McConnell, et. al., which defined the class as all permanent rehabilitation employees and limited duty employees at the Agency who have been subjected to the NRP from May 5, 2006 to the present, allegedly in violation of the Rehabilitation Act. The AJ defined the McConnell claims into the following broader complaint: (1) the NRP fails to provide a reasonable accommodation (including allegations that the NRP "targets" disabled employees, fails to include an interactive process, and improperly withdraws existing accommodation); (2) the NRP creates a hostile work environment; (3) the NRP wrongfully discloses medical information; and (4) the NRP has an adverse impact on disabled employees. The Agency chose not to implement the decision and appealed the matter to the Commission. The Commission agreed with the AJ's definition of the class and the McConnell claims, as stated above. Accordingly, the Commission reversed the Agency's final order rejecting the AJ's certification of the class. McConnell v. U.S. Postal Serv., EEOC Appeal No. 0720080054 (January 14, 2010).
Here, the record reflects that the Agency had provided Complainant with a modified clerk position after her shoulder surgery for almost two years before she went on detail. After Complainant's supervisory detail ended, instead of placing Complainant back in her Modified Clerk position, the Agency sought to place Complainant in a modified Rural Carrier position. As such, similar to claim (1) of McConnell, the Agency sought to reassign Complainant, thereby attempting to withdraw her existing accommodation for her on-the-job injury. We note that the Health and Resource Management Specialist (HRMS) testified that Complainant was initially accommodated in a limited-duty assignment on March 9, 2007, in a Modified Clerk position. ROI, at 18. The HRMS testified that that the Agency was in the process of reviewing all jobs and duties performed by limited-duty employees. Id. The HRMS testified that the process is called the National Reassessment Process (NRP). Id. The HRMS testified that once all limited-duty employees have been identified and it has been determined which jobs are available, assignments will be issued to employees on a permanent basis. Id. The HRMS testified that Complainant has not requested a permanent job offer in writing. Id.
Notwithstanding our findings above, we find that there is insufficient evidence within the record to determine whether the Agency's actions were actually due to the NRP. As such, we cannot determine whether Complainant's claim of disability discrimination falls within the McConnell class action. Therefore, we find that the record must be supplemented with documents regarding the Agency's reasons for taking away, and later rescinding an offer of, Complainant's Modified Clerk position. Once the record is further developed, the Agency should determine whether Complainant's claim of disability discrimination falls within the McConnell class action. If the matter falls within the class action, the instant complaint should be subsumed. If not, then the Agency should re-issue its final order as to Complainant's reasonable accommodation claim, including its determination as to why this claim does not fall within the McConnell class action.
CONCLUSION
The Agency's final order adopting the AJ's decision that it did not discriminate against Complainant based on sex, age, and reprisal is AFFIRMED. The Agency's final order adopting the AJ's decision that it did not discriminate against Complainant because of disability by failure to provide reasonable accommodation is VACATED and REMANDED in accordance with the order below.
ORDER
Within thirty (30) calendar days of this decision becoming final, the Agency is ordered to take the following actions:
1. Supplement the record in order to determine whether the instant reasonable accommodation complaint is identical to the reasonable accommodation claim raised in the McConnell class action.
2. If the Agency determines that Complainant's claim is not identical to the claim raised in the McConnell class complaint, the Agency shall re-issue its final order. The Agency shall provide a copy of its final order including its determination why this claim does not fall within the McConnell class action to the Commission's Compliance Officer as noted below.
3. If the Agency determines that the complaint raises the same claim as in the McConnell class complaint, the Agency is ordered to subsume the instant claim into the McConnell class complaint. See Equal Employment Opportunity Management Directive-110, Chap. 8,
� III(C) (Nov. 9, 1999). The Agency shall provide Complainant with notification that the Agency has subsumed her claim within the class complaint. A copy of that notice shall also be provided to the Commission's Compliance Officer as noted below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 3, 2013
Date
1 In Victoria Bingham v. United States Postal Service, EEOC Appeal No. 0120090694 (May 6, 2010), we found that the Agency had not breached the terms of the May 29, 2008, settlement agreement.
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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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