Ann Marie Ghete, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 14, 2009
0120071031 (E.E.O.C. May. 14, 2009)

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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0120071031

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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