0120070391Hill
03-13-2009
Anita L. Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anita L. Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070391
Agency No. 4F900012406
DECISION
On October 26, 2006, complainant filed an appeal from the agency's
September 27, 2006 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
On May 31, 1988, complainant incurred an on-the-job injury and was
diagnosed with lower back strain and sciatica. On February 19, 1997,
complainant's physician issued the agency a report of complainant's
physical limitations. On June 25, 2001, the agency reasonably
accommodated complainant by offering her a permanent modified stationary
job that only required sedentary work at the Palms Station in Los Angeles,
California. Complainant accepted the position.
On September 8, 2001, complainant was diagnosed with a cerebral aneurysm
that left her with residuals of a stroke and required therapy and surgery.
As a result of the aneurysm, complainant was unable to perform the duties
of her modified limited duty position.
On or about October 24, 2005, complainant was returned to light duty and
was given a modified classified job offer as a window distribution clerk.
The duties of complainant's job included lifting packages, sitting at
the customer service window, handling customer complaints, and answering
the telephone. Complainant's physical restrictions imposed by a physician
included no lifting, pushing, pulling, walking, or standing. Further, she
was prohibited from performing duties for more than 50 minutes at a time.
Additionally, complainant's supervisor stated that complainant refused
to have any contact with the public in order to avoid stress that could
exacerbate her back pain. When it became apparent that complainant was
unable to work within her restrictions, and complainant refused to request
a reasonable accommodation herself, a reasonable accommodation request
was made by the agency on complainant's behalf on November 21, 2005.
On or around February 7, 2006, complainant's supervisor did not schedule
complainant for eight hours because there was not enough work that
complainant could perform for a full eight hour day. The supervisor
informed complainant that she would schedule her for eight hours if her
physical limitations changed, which she could establish by producing
new documentation from her physician. Complainant failed to produce
the documentation.
Subsequently, the agency was unable to identify a reasonable accommodation
that would have allowed complainant to perform the essential functions of
the position. As a result, on or around February 27, 2006, complainant
was asked to end her tour.
On March 16, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of disability (lower back injury
with sciatica and Cerebral Aneurysm) and in reprisal for prior protected
EEO activity when:
On February 7, 2006, and ongoing, complainant was scheduled for less
than eight hours.
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.
Specifically, the agency found that complainant was no longer qualified
for the window clerk position. Additionally, the agency found that the
agency articulated legitimate, nondiscriminatory reasons for reducing
complainant's work hours. Complainant now appeals to the Commission.
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").
Reasonable Accommodation
Complainant asserts that the agency should have accommodated her in the
window distribution clerk position. Under the Commission's regulations,
an agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual
with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation
includes modifications to the manner in which a position is customarily
performed in order to enable a qualified individual with a disability to
perform the essential job functions. Enforcement Guidance - Reasonable
Accommodation. 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 absent undue hardship.
See Enforcement Guidance: Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, EEOC No. 915.002 (October 17,
2002).
The agency concedes, and we assume without finding, that complainant is an
individual with a disability within the meaning of the Rehabilitation Act.
Next, complainant must establish that she was a "qualified individual with
a disability," which is defined as an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. � 1630.2(m).
We find that complainant failed to establish that she was a qualified
individual with a disability. First, complainant acknowledges that she
could not perform the essential functions of the position. Specifically,
complainant could not bend or stoop to pick up packages, she could
not lift packages, and she refused to interact with the public, handle
stressful customer complaints or other stressful situations. Complainant
asserts that she could perform some duties, such as occasionally
answering the telephone if it did not involve a stressful customer
complaint, processing paper dolls, writing notices, and tracking mail.
However, we agree with the agency that these are not the essential
functions of the window clerk position. Further, complainant failed
to identify an accommodation that would have allowed her to perform the
essential functions of the clerk position. Therefore, complainant was
not "qualified" for the position as defined by the Rehabilitation Act.
Additionally, the record supports the agency's assertion that there were
no other vacant positions for which complainant was qualified that the
agency could have placed her in. Therefore, we find that the agency
did not fail to reasonably accommodate complainant's disability.
Disparate Treatment
Complainant alleges that she was disparately treated on the bases of
her disability and in reprisal for prior protected EEO activity when
her supervisor refused to schedule her for a full eight-hour work day.
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 she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 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 Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995). Here,
we will assume, but do not find, that complainant has established her
prima facie cases of disability and reprisal discrimination.
Here, the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, complainant's supervisor stated that there
was not enough work for complainant since she could not perform the
essential functions of her position, and therefore a reduction in hours
was appropriate.
The complainant must now establish, by a preponderance of the
evidence, that the agency's legitimate, nondiscriminatory reasons were
pretext for discrimination. Here, the record does not establish by a
preponderance of the evidence that the agency's actions were motivated
by discriminatory animus towards complainant's disability or her prior
protected EEO activity. Complainant failed to establish that the agency's
legitimate, nondiscriminatory reasons were more likely than not pretext
for discrimination. Therefore, we affirm the agency's finding that no
discrimination existed.
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 decision, because a preponderance of the evidence in the record
does not establish that discrimination existed.
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
March 13, 2009
Date
2
0120070391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120070391