0120071031
05-14-2009
Ann Marie Ghete, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ann Marie Ghete,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071031
Hearing No. 380200500161X
Agency Nos. 1E997000305, 1E997001603
DECISION
On December 15, 2006, complainant filed an appeal from the agency's
November 8, 2006 final order concerning her equal employment opportunity
(EEO) complaint. Complainant alleged 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to her complaints, complainant worked
as a General Expeditor at the agency's Anchorage, Alaska Processing and
Distribution Center. Complainant's regular duties were labor-intensive
and required four to five hours walking and standing and up to 70 pounds
of heavy lifting, pushing and pulling.
Commencing March 2002, complainant experienced a number of medical issues
related to her heart and her knees that affected her ability to perform
her duties. By November 2002, the agency referred complainant for a
fitness-for-duty examination. Complainant at that time was limited to
lifting no more than ten pounds and standing and walking for no more
than one hour each. Complainant had been advised to walk with crutches,
which the agency did not permit on the workroom floor, or a cane, which
the agency did permit.
For the period July 2002 through January 2003, complainant worked light
duty full time. In January 2003, at the end of the holiday season, the
agency reduced complainant's light duty hours. Complainant bid on a
position performing Nixie and Express Mail duties. She submitted to the
agency a note from a physician's assistant identifying her limitations as
up to 50 pounds lifting and walking and standing up to two and one-half
hours each per day. A few days later, however, her doctor re-imposed
her earlier, more stringent limitations.
On January 26, 2003, complainant experienced leg and ankle pain while
performing her Nixie and Express mail duties. Complainant's supervisor
sent her home.
It is noted that at this time, complainant had a workers' compensation
claim pending regarding her knee condition. The agency's District
Reasonable Accommodation Committee (DRAC) delayed action on complainant's
assignment, waiting to see whether the Office of Workers' Programs
(OWCP) would afford complainant a permanent limited duty position, and
also because it was in possession of complainant's conflicting medial
evidence regarding her limitations.
On May 20, 2003, complainant's doctor wrote that complainant's
knee condition was permanent bilateral degenerative arthritis with
gradual deterioration. The doctor noted, "Over the last couple of
years, you [complainant] have occasionally requested modification of
your restrictions apparently in an attempt to obtain different types
of jobs with the Post Office, and then, as soon as the job was either
awarded to you or someone else, you came back and requested the original
restrictions."
On July 25, 2003, complainant filed an EEO complaint (1E-997-0016-03)
alleging that she was discriminated against on the bases of sex (female),
and age (51), disability (perceived), and in reprisal for prior EEO
activity, when (1) the agency denied her light duty continuously since
January 7, 2003; (2) the agency required her to take a fitness-for-duty
examination in November 2002; and (3) when the agency removed her modified
nixie-express duties.1
In February 2004, the Postal Service offered complainant a modified
Manual Clerk position, which she accepted. On February 19th, 2004, she
experienced pain and swelling in her leg, while casing mail. She was sent
home. The agency requested further documentation. Complainant did not
submit the additional medical documentation as directed by the agency. The
agency issued a warning for failure to follow instructions. On January
29, 2005, the agency gave complainant notice of its intent to remove her.
On May 25, 2005, complainant filed a second EEO complaint (1E-997-0003-05)
alleging that she was discriminated against in reprisal for prior
protected EEO activity when she was issued the Notice of Removal.
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). The AJ held a hearing
on complainant's consolidated complaints on September 12, 2006.
The AJ issued a decision on September 28, 2006, concluding that the
agency did not discriminate against complainant. The AJ found that
complainant was not similarly situated to the persons with whom she
compared herself; that an older woman had been given light duty;
and that the agency articulated legitimate reasons for discontinuing
her light-duty work after January 7, 2003, because the post-holiday
rush was over. The AJ found that complainant was no longer able to
walk or stand for more than 35 minutes or perform the functions of
the Expeditor or the modified Nixie Express Mail Manual Clerk job that
required walking. The AJ found that there were no vacant positions open
for reassignment that met complainant's restrictions. The AJ rendered his
decision based on credibility determinations, in which the AJ concluded
the agency's explanations were more credible and that complainant was not
as forthcoming. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that she was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant challenges the AJ's methodology and argues that no
doctor, chiropractor, or physician's assistant testified at the hearing as
to complainant's abilities and that the agency ignored the evidence that
showed bias against her. Complainant asserts that the agency's incorrect
perception of complainant's ability to perform entitled her to prevail.
The agency contends, inter alia, that the AJ's findings are fully
supported by the evidence and that the agency acted lawfully and in
reliance upon the medical documentation and observations.
ANALYSIS AND FINDINGS
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, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ found that complainant did not meet her burden
to show that the agency's articulated reasons for its conduct were a
pretext for sex, age, reprisal, or disability discrimination. The AJ
concluded that complainant met the definition of an individual with a
disability within the meaning of the Rehabilitation Act. Although the
AJ found that complainant's medical limitations supported a finding
that complainant was not able to perform the essential functions of her
job, the AJ required the agency to address the reasonable accommodation
requests as if complainant were a qualified individual with a disability.
Further, the AJ found that the Postal Service met its burden to show
that it attempted to accommodate complainant, and that there were no
available vacant open positions within complainant's qualifications.
Moreover, the AJ found that complainant was not a credible witness with
regard to her medical limitations. The AJ's findings are supported by
substantial evidence of record, and are bolstered by the credibility
determinations. Accordingly, we find no basis to disturb the AJ's
decision
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, it is the decision
of the Commission to affirm the agency's final order.
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 tends 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
May 14, 2009
Date
1 The agency dismissed this complaint for failure to prosecute
after complainant did not timely file an investigative affidavit.
The Commission reversed the dismissal and remanded the complaint for
processing. Ann M. Ghete v. United States Postal Service, EEOC Appeal
No. 0120044540 (September 28, 2004).
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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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