01996823
08-27-2002
Wendy Duncan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wendy Duncan v. United States Postal Service
01996823
08-27-02
.
Wendy Duncan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996823
Agency Nos. 1H-352-0001-97 & 1H-352-0001-98
Hearing Nos. 130-98-8266X & 130-98-8267X
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant filed two complaints in which she claimed that the agency
discriminated against her on the bases of disability and reprisal, in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.
ISSUES PRESENTED
Complaint No. 1H-352-0001-97 (hereinafter �complaint # 97) - whether
the agency discriminated against complainant on the basis of disability
(myofacial pain syndrome in the shoulder and neck) by:
Denying her request for permanent light duty on August 23, 1996;
Issuing her a notice of removal on August 23, 1996, effective on
September 23, 1996;
Returning a form she submitted to the injury compensation office on
August 23, 1996; and
Barring her from work and paying her for only 3 hours per day between
August 23, 1996, and September 23, 1996.
Complaint No. 1H-352-0001-98 (hereinafter �complaint # 98) - whether the
agency retaliated against complainant for initiating complaint # 97 by:
Denying her an identification badge when she returned to work after a
successful grievance which resulted in her being reinstated;
Changing her job description by increasing the amount of time that group
leaders spent keying mail; and
Paying her for only 3 hours of work per day between September 4, 1997
and September 25, 1997, the effective date of her reinstatement;
BACKGROUND
The agency employed complainant as a group leader - data conversion
operator at its remote encoding center (REC) in Birmingham, Alabama. She
was injured in an off-duty car accident in October 1995. Between October
19, 1995 and May 17, 1996, she had periods of absence from work in order
to obtain treatment for her injuries. Between May 17, 1996 and June 18,
1996, she took a leave of absence under the Family and Medical Leave Act.
On June 18th, she returned to work in light-duty status, working for
four hours per day. By July 17th, she had returned to full-duty status.
On August 6, 1996, complainant returned to her doctor for a follow-up
examination, stating that her condition had been aggravated. In a report
dated August 14, 1996, complainant's physician indicated that she would be
under permanent light duty restrictions, including: full restrictions on
lifting packages weighing 50 pounds or more, and reaching or working above
the shoulder; and partial restrictions on lifting packages between 20 and
50 pounds, standing, sitting, stooping, kneeling, bending and climbing.
The physician also indicated that complainant could type for up to
three hours per day, with breaks every hour, and that she could work a
full eight-hour day under these restrictions. Investigative Report -
Complaint 97 (IR97), Exhibit (Ex.) 5. In a report dated August 16,
1996, the agency's medical officer identified complainant's diagnosis
as myofacial pain syndrome and stated that complainant could continue
to work within her medical restrictions as long the accommodations
recommended by her personal physician could be met. IR97, Ex. 4.
On August 23, 1996, the REC human resources supervisor notified
complainant that her request for permanent light duty would be denied,
on the ground that she did not have five years of service. IR97, Ex. 6.
Article 13 Section 2(B)(1) of the collective bargaining agreement
specified that requests for permanent light duty reassignments could
only be made by employees who had at least five years of service. IR97,
Ex. 8. Complainant's PS-50 form indicated that she entered on duty on
June 25, 1995. IR97, Ex. 1.
Also on August 23, 1996, complainant was notified by the remote encoding
operations supervisor that she would be removed, effective September 23rd.
The stated reason for the removal action was inability to perform
the duties of her job assignment. The notice stated that medical
documentation provided by complainant's physician confirmed that she
was unable to fully perform the duties of the position of group leader
/ data conversion operator, and that her work restrictions could not
be accommodated. IR97, Ex. 10.
On that same date, complainant received a returned copy of a CA-7 workers
compensation claim form that she had submitted earlier. In a transmittal
memorandum dated August 23, 1996, and addressed to complainant, a human
resources specialist informed complainant that she was sending the CA-7
form back to her because she had not yet submitted her CA-2 form to
her supervisor. IR97, Ex. 17. In her affidavit, the human resources
specialist stated that complainant came into her office on an earlier
date and insisted on leaving the CA-7 form with her, notwithstanding
that the other paperwork had not been completed. She further stated
that she agreed to take the CA-7 because complainant told her that she
would submit the rest of the paperwork shortly. Complainant had not
done so as of August 23, 1996. IR97, affidavit (aff.) E, p.1.
On August 25, 1996, complainant was told by the REC manager not to return
to the REC and informed that she would only be paid for three hours per
day between August 23, 1996, and September 23, 1996, the effective date
of her removal. The REC manager stated that this decision was made in
the best interest of the agency in that complainant could remain at home
until her removal became effective. IR97, aff. E, p. 6.
Complainant filed a grievance on the removal. A hearing was held before
an arbitrator on August 18, 1997. On September 4, 1997, the arbitrator
issued a decision in complainant's favor and ordered that complainant
be reinstated with back pay and benefits retroactive to the date of
her removal. Complainant was reinstated on September 25, 1997. IR98,
Aff. A, p. 1.
Complainant stated that management refused to provide her with the
appropriate identification badge, and that she did not receive a badge
until September 28, 1997. The REC operations manager stated that
complainant was never denied an identification badge, and that she was
able to gain entrance to the facility with permission from the supervisors
on duty. IR98, Aff. A, pp. 1-2.
On September 9, 1997, five days after the arbitrator issued his decision
to reinstate complainant, the new REC manager issued a document entitled,
�Policy Clarification - Group Leader Duties and Responsibilities.� This
notice stated, in essence, that group leaders were to be considered
journeyman operators, with group leader duties being ancillary rather
than primary. The notice explicitly stated that career employees in
group leader functions would be required to key live image mail for 4-6
hours per day on any regularly scheduled workday. IR98, Ex. 4, p. 1.
Complainant stated that the policy was changed in order to target her,
since her medical restrictions prevented her from keying for more than
three hours per day. IR98, aff. A, p. 2. The operations manager denied
that complainant's job description was changed. IR98, aff. B, p. 1.
There are no indications that complainant was ever required to key mail
for more than three hours per day after her reinstatement to the group
leader position.
Finally, complainant maintains that she was entitled to 8 hours of
administrative leave, rather than only 3 hours, for the period between
September 4, 1997, the date of the arbitrator's decision to reinstate
her, and September 25, 1997, the actual date of her reinstatement.
Complainant stated that, during that interval, she should have received 8
hours of administrative leave per day, but that she only received 3 hours
of administrative leave per day. She further stated that the remaining
5 hours were logged in as leave without pay. IR98, aff. A, pp. 2-3.
The operations manager stated that he did not understand the question
when the investigator asked him who made the decision in complainant
receiving only three hours of �administrative pay.� IR98, aff. B.
No other information in the record is present on this issue.
The agency investigated the two complaints and thereafter referred
them to an administrative judge (AJ), who issued a partial finding
of discrimination and awarded a remedy, without holding a hearing.
With respect to complaint # 97, the AJ found disability discrimination
with respect to the removal action and to her being barred from returning
to the REC and only being paid for three hours of work. In particular,
the AJ found that the agency regarded complainant as having a disability.
The AJ did not find reprisal, however, with respect to any of the
incidents raised in complaint # 98. The agency adopted the AJ's
decision as its final order. On appeal, complainant challenges that
portion of the agency's final order which affirms the AJ's findings of
no discrimination with respect to issues �a� and �c� in complaint # 97,
and with respect to issues �a� and �b� in complaint # 98.
ANALYSIS AND FINDINGS
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. 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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complaint # 97
Issue �a� - Denial of Request for Permanent Light Duty
We will assume, arguendo, that complainant is an individual with a
disability.<1> To be entitled to permanent light duty or any other
reasonable accommodation under the Rehabilitation Act, complainant
must show that she is a qualified individual with a disability, i.e.,
that she can, with or without reasonable accommodation, perform the
essential functions of the position in question. 29 C.F.R. � 1630.2(m).
In this case, the August 1996 medical reports indicated that complainant
could perform the essential functions of her position as long as she was
given permanent light duty. The agency's reason for denying complainant's
request for reassignment to a permanent light duty position was that she
did not have five years of service at the time she made her request.
The relevant provision of the collective bargaining agreement clearly
stated that employees had to have completed five years of service
in order to be eligible to request permanent light duty positions.
Complainant's employment records indicated that she had completed a
little over a year of service when she submitted her request. Under the
regulations in effect at the time, postal employees were not considered
qualified for any offer of reassignment that is inconsistent with the
terms of a collective bargaining agreement. 29 C.F.R. � 1614.203(g).<2>
Since granting complainant reasonable accommodation would result in a
violation of the collective bargaining agreement, we find that, under
Subsection 203(g), complainant is not a qualified individual with a
disability, and is therefore not entitled to reasonable accommodation.
Issue �c� - Return of CA-7 Injury Compensation Form Previously Submitted
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). 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).
Under this analysis, in order to establish a prima facie case,
complainant must demonstrate that: (1) she is an "individual with a
disability"; (2) she is "qualified" for the position held or desired;
(3) she was subjected to an adverse employment action; and (4) the
circumstances surrounding the adverse action give rise to an inference
of discrimination. Lawson v. CSX Transp., Inc., No. 00-1179, 2001 WL
292999 (7th Cir. March 26, 2001). The burden of production then shifts
to the agency to articulate a legitimate, non-discriminatory reason
for the adverse employment action. In order to satisfy her burden
of proof, complainant must then demonstrate by a preponderance of the
evidence that the agency's proffered reason is a pretext for disability
discrimination. Id. Assuming that complainant established a prima facie
case, the agency's reason for returning complainant's CA-7 form to her
is that she had not yet submitted the other paperwork to her supervisor.
Complainant has not presented any evidence that contradicts the affidavit
of the human resources specialist who processed complainant's injury
compensation application. She has likewise not presented any evidence
that undermines the specialist's credibility as a witness.
Complaint # 98
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, and Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of her protected activity;
(3) subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action. See Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Issue �a� - Denial of Identification Badge
We find that complainant failed to establish a prima facie case with
respect to this issue because the record does not support her contention
that she was denied an identification badge upon her return to work.
The record does establish that complainant was issued her ID badge
three days after she returned to work. However, she has not shown that
the delay was attributable to anything other than an administrative
oversight, and consequently, has not shown that the delay constituted
adverse treatment. Moreover, she has not shown that the delay was
attributable to the fact that she initiated complaint # 97.
Issue �b� - Change of Job Description
Complainant has likewise failed to show that the REC manager's policy
change regarding the number of hours a group leader spent keying mail
was related to complaint # 97. Moreover, she has not shown that she was
required to key mail for more than three hours per day, outside of her
permanent medical restrictions. Without such a showing, complainant is
unable to establish that the policy change constituted adverse treatment,
for the purpose of establishing a prima facie inference of retaliation.
CONCLUSION
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 order,
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 discrimination occurred with respect to issues �a�
and �c� in Complaint No. 1H-352-0001-97, or with respect to issues �a�
and �b� in Complaint No. 1H-352-0001-98.<3>
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
____08-27-02______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission is not adopting the AJ's finding that the agency
�regarded� complainant as having a disability. Since the evidence of
coverage under any of the definitions of �disability� is limited, but, as
discussed above, the evidence is clear that complainant is not entitled
to reasonable accommodation, the Commission is willing to assume that
she meets the definition of �disability� in order to resolve this case.
However, in the instant case the Commission takes no position on the
issue of whether a person who only falls under the �regarded as� prong
is entitled to reasonable accommodation.
2The agency is advised that 29 C.F.R. � 1614.203(g), which governed and
limited the obligation of reassignment in the Federal sector, has been
superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to be
codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found in 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.
3In its final order, the agency indicated that it would pay complainant
all wages and benefits not already awarded through the arbitration
process, and would award complainant pecuniary damages covering out
of pocket expenses that were not a part of the arbitrator's award.
Complainant has not challenged that part of the agency's final order
addressing these remedies in his appeal, and therefore that issue is not
before us. We remind the agency, however, of its obligation to provide
the relief specified in its final order, to the extent that it has not
already done so.