0120072276
01-16-2009
Angela L. Britt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angela L. Britt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072276
Agency No. 4A070017806
DECISION
On April 6, 2007, complainant filed an appeal from the agency's March 2,
2007 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 appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Automated Mark-Up Clerk at the agency's Newark, New Jersey Main
Post Office. On September 5, 2006, complainant filed an EEO complaint
alleging that she was discriminated against on the basis of disability
(multiple sclerosis) when:
1. beginning May 8, 2006, her work hours were reduced and she was
not being accommodated and utilized to her work capabilities;
2. on May 26, 2006, she was advised that she needed to have her
work restrictions updated;
3. effective June 3, 2006, she was placed "on-call" for work; and
4. on August 18, 2006, her request for light duty was denied.
At the conclusion of the investigation, complainant was provided 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 she was subjected to discrimination as alleged.
The agency found complainant was a qualified individual with
a disability, but she failed to establish a prima facie case of
disability discrimination because she failed to show how she was treated
differently than similarly situated non-disabled individuals. Rather,
the agency maintained that all individuals within the CFS Unit where
complainant worked had their hours reduced due to the Postal Automated
Redirection System (PARS), a machine that reduced the unit's workload
by 80 percent. The agency also maintained that in May 2006, it did
ask complainant to update her medical restrictions in order to develop
new modified job offers. The Manager, Customer Service, averred that
complainant was placed "on call" due to PARS implementation. Furthermore,
management personnel averred that complainant was not denied light duty;
rather, she was given Window Clerk training and the District Reasonable
Accommodation Committee (DRAC) reviewed her case in an attempt to find
a clerical position for complainant. As complainant notes on appeal,
she has been placed into a part-time Window Clerk position.
CONTENTIONS ON APPEAL
Complainant's primary contention on appeal involves her dispute
with the agency's reduction of her hours from full-time to part-time.
Complainant does not dispute that her transfer from the CFS unit to the
Mail Processing Unit was done due to the automation and the unit's loss
of work. However, she argues that when she was returned to the CFS unit,
her hours were reduced despite her observation that others were asked
to work overtime. She supplies an affidavit, and one of a co-worker,
which aver that other full-time regular and part-time flexible employees
assigned to the CFS Unit, and other part-time flexible employees who had
been reassigned to the Mail Processing Unit were asked to work overtime.
Complainant contends that the request to update medical documentation
and her placement "on call" was discriminatory and harassing, and she
also maintains that she was denied light duty.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, 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").
Complainant's claim raises both disparate treatment and failure to
accommodate claims. 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) he 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., 245 F.3d 916
(7th Cir. 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 his 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.
Here, assuming complainant was an individual with a disability1 and that
she otherwise could establish a prima facie case of discrimination
on the alleged bases, the agency has articulated legitimate,
nondiscriminatory reason for reducing complainant's hours; namely,
that there was insufficient work in her former unit to occupy her for
eight hours. As a part-time flexible employee, complainant was only
guaranteed work for four hours per day. Although complainant contends
on appeal that others were granted overtime in the unit, we find she
failed to prove the agency's reasons were a pretext for discrimination.
Complainant essentially concedes on appeal that a reduction in personnel
was necessary given the automation of the PARS system. Like all CFS
Unit part time flexible employees, complainant was removed from the CFS
Unit and placed into the Mail Processing Unit.
When it became clear the job duties of the Mail Processing Unit were not
in compliance with her medical restrictions, complainant was returned
to the CFS Unit.2 However, there was only a limited amount of work
available that was within her medical restrictions, and as such,
complainant suffered a reduction in hours, and was placed "on call."
Complainant contends that others received overtime; however, she failed to
name any individual in order for the agency to assess if they were indeed
similarly situated. Further, she failed to identify the type of work that
was being performed on overtime such that an assessment could be made as
to whether the work was within her medical restrictions. Complainant
has not carried her burden of proof in this case to establish that the
agency's reasons for reducing her hours and placing her "on call" were
a pretext to discriminate against her on the basis of her disability.
Complainant also complains that the agency inappropriately requested
medical documentation from her. An employer may require an employee
to provide documentation that is sufficient to substantiate that she
has a disability within the meaning of the Rehabilitation Act and needs
the reasonable accommodation requested, but cannot ask for unrelated
documentation. Documentation is insufficient if it does not specify
the existence of a disability and explain the need for reasonable
accommodation. An employer that requests additional information based
on a good faith belief that the documentation the employee submitted is
insufficient is not liable for discrimination. EEOC Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees Under
the Americans with Disabilities Act (ADA), response to question 11,
(July 27, 2000) (available at www.eeoc.gov). In this case, complainant
was asked to provide medical documentation around the time that the
nature of her position was changing. It was reasonable for the agency
to request updated medical documentation in this circumstance.
Finally, complainant states that she was denied light duty, a form of
a reasonable accommodation. Federal agencies are required to provide
reasonable accommodation to qualified individuals with disabilities who
are employees or applicants for employment unless to do so would cause
undue hardship. 29 C.F.R. � 1630.9(a). In this case, the record reveals
that complainant requested light duty, and she received a response on
August 16, 2006. Therein, the Manager, Customer Service informed her that
she had been sent to window training to see if she could become a Window
Clerk at another facility, and in the interim, management was waiting
to hear back on the decision of the District Reasonable Accommodation
Committee (DRAC). The record reveals complainant has since been placed
into a Window Clerk position. Accordingly, we find that complainant
has failed to establish she was denied an accommodation.
CONCLUSION
We AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 16, 2009
Date
1 We do not decide in this decision whether complainant is a qualified
individual with a disability.
2 At the time, complainant was limited to no lifting over 10 pounds,
no pushing or pulling over 20 pounds, no twisting, climbing, kneeling,
or squatting; intermittent sitting, standing, walking, bending, stooping,
and driving.
??
??
??
??
2
0120072276
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120072276
7
0120072276