01A23962_r
12-22-2003
Beatrice Gary, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Beatrice Gary v. United States Postal Service
01A23962
December 22, 2003
.
Beatrice Gary,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A23962
Agency Nos. 4F-907-0163-99, 4F-907-0132-99, and 4F-907-0110-99
Hearing Nos. 340-99-4074X, 340-99-4078X, and 340-A0-3340X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a T-6 letter carrier at the agency's
Compton, California facility, filed formal complaints, alleging that
the agency discriminated against her on the basis of disability and in
reprisal for prior EEO activity when:
On January 23, 1999, the agency changed complainant's scheduled reporting
time, denied her a change of schedule, told her not to talk or walk
around, required complainant to carry too much mail, and issued a letter
disciplining her for returning to the office with undelivered mail;
In April 1999,, the agency failed to accommodate her and sent her home
from work;
On May 10, 1999, the agency delayed complainant's OWCP paperwork; and
On June 24, 1999, the postmaster harassed complainant.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ determined that the agency did not have a duty to accommodate
complainant based on her physician's February 1999 letter because the
restrictions were phrased as advisory requests and not necessities.
The AJ concluded that the agency's failure to act on the physician's
"recommendation" in the letter did not amount to a failure to accommodate
complainant's impairments (identified elsewhere in the record as Lupus,
Carpal Tunnel Syndrome, Shoulder Impingement, and Elbow Tendonitis)
because it was not a request for accommodation under the Rehabilitation
Act. With respect to complainant's disparate treatment claims, the AJ
found that the agency proferred legitimate, non-discriminatory reasons
for each action that were not rebutted by complainant as pretext for
disability discrimination. Regarding complainant's harassment claim,
the AJ found that although there was hostility among other carriers
toward employees who were unable to complete their carrier duties,
"complainant failed to establish the kind of severity or pervasiveness
necessary to violate discrimination statues." The agency's final order
implemented the AJ's decision.
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.
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. 29 C.F.R. � 1614.109(g). 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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003)
The record reveals that as a T-6 letter carrier, complainant filled in on
other carrier's off days. The record further reveals that complainant was
diagnosed with systemic lupus erythematosus in approximately 1993. In her
testimony, complainant stated that she suffered intermittently from severe
joint pain and swelling, gastrointestinal upset, weakness, and fatigue.
In late 1998, complainant's physician restricted her from working more
than 40 hours per week and from carrying more than ten pounds.
In her testimony, complainant stated that the previous postmaster allowed
her to case her route with assistance from supervisors. On January
8, 1999, the Postmaster issued a notice to all letter carriers which
stated that effective January 16, 1999, "no carrier is to report prior
to 6:00 a.m." On January 20, 1999, the Postmaster issued complainant a
written notice that her scheduled reporting time would be changed to 7:00
a.m. in order to allow management to provide complainant with assistance
in the office and to manage her work load more effectively. Complainant
immediately requested a permanent change of schedule back to 6:00 a.m.,
but the Postmaster denied his request.
Complainant maintained that the Postmaster allowed some carriers
to continue reporting to work at an earlier time, even though their
schedules were officially changed to a later starting time. However,
complainant was allowed to report earlier than her 7:00 a.m. starting time
in 1999. Throughout January 1999, complainant was able to perform all of
her carrier duties, but was not able to work overtime. During this period
of time, complainant's supervisors provided her with help when needed.
On January 20, 1999, a supervisor gave complainant a "documented
discussion" for giving too much mail to the carrier assigned to assist
her that day and impermissibly bringing first class mail back undelivered.
Complainant stated that she knew she should have called the office while
still on the street if she could not complete delivery of all the assigned
first class mail.
On February 19, 1999, complainant's physician wrote a letter to the agency
stating that complainant's lupus caused rashes when she was exposed to the
sun and that "a great deal of walking causes inflammation of the joints."
The physician requested that complainant be changed to a light duty job
where she will not be exposed to sun and where she does not have to do any
great deal of walking. On March 31, 1999, complainant was diagnosed with
carpal tunnel syndrome, right epicondylitis, and shoulder impingement,
and was restricted from reaching above her shoulder.
Beginning April 1, 1999, complainant cased with her left hand until
another employee came in around 9:00 or 9:30 a.m., when she was
sent home. She had to take sick leave for the remainder of the day.
Complainant testified that she would come in and case with only her left
hand every day after April 2, 1999, and did not carry mail for about six
to seven months thereafter. Complainant stated that it was difficult
to case left-handed because she is right-handed, it took a long time,
and it was painful. Eventually, complainant's physicians restricted her
from lifting more than ten pounds and any repetitive motion or twisting.
Management then assigned her to assist other supervisors.
Complainant was then assigned to work "nixie" mail in the conference
room, but her arm swelled after one day from repetitive letter stamping.
A supervisor then assigned complainant to mark through bar code on
letters, which she did for only a short period of time because of
the repetitive nature of the work. Complainant testified that she
then told the Postmaster to "give me a job within my restrictions."
The Postmaster assigned complainant to call customers, find packages,
assist on the window counter line, and help supervisors with paperwork.
Nevertheless, lifting packages caused pain to complainant, which led the
Postmaster to advise complainant to get assistance from co-workers if
packages were too heavy for her to lift. Eventually, complainant was
transferred to the Compton Hub Station where she was assigned to talk
with customers, fill out forms, and locate packages.
The record contains a copy of the position description for a city carrier.
The description states that a city carrier delivers and collects mail on
foot or by vehicle under varying conditions in a prescribed area within
a city. Included in the duties and responsibilities of a city carrier,
are the following tasks:
Routes or cases all classes of mail in sequence of delivery along an
established route. Rearranges and relabels cases as required by route
adjustments and changes in deliveries;
Withdraws mail from the distribution case and prepares it in sequence for
efficient delivery by himself or a substitute along an established route.
Prepares and separates all classes of mail to be carried by truck to
relay boxes along route for subsequent delivery;
Sorts mail to be forwarded into throw-back case for handling by clerks;
Delivers mail along a prescribed route, on foot or by vehicle,
on a regular schedule, picking up additional mail from relay boxes.
Collects mail from street letter boxes and accepts letters for mailing
from customers; on certain routes may deliver mail that consists
exclusively of parcel post, or the collection of mail;
Delivers and collects charges on customs, postage-due, c.o.d. and receipts
for registered and certified mail;
Deposits mail collected in the post office upon return from route;
Checks, and corrects if necessary, mailing cards from advertisers;
Furnishes customers with postal information when requested, and provides
change of address cards and other postal forms;
May, as a substitute carrier, perform clerical duties.
The record contains a document dated January 8, 1999 from the agency
addressed to all carriers. The letter states that effective January 16,
1999, "no carrier is to report prior to 6:00 a.m." The record contains
a copy of a form dated January 1, 1999, wherein complainant requested
a schedule change from 7:00 a.m. to 3:50 p.m. to 6:00 a.m. to 2:30 a.m.
The record further contains a letter from complainant's physician dated
February 19, 1999. The letter stated the following, in pertinent part:
[Complainant] has been diagnosed with lupus erythematosus. This
condition causes rashes when exposed to the sun and also causes a
multitude of other symptoms, including inflammations of the vessels and
inflammation of the joints. Despite the patient's use of long sleeves
and a large hat, she continues to have rashes due to sun exposure
secondary to her lupus. The patient also does a great deal of walking
and has had episodes of inflammation of joints secondary to this. I am
requesting on her behalf that she be changed to light duty job where she
will not be exposed to sun and where she does not have to do any great
deal of walking.
The record also contains a letter from complainant's physician dated
April 1, 1999. The letter states the following, in pertinent part:
Beatrice Gary was seen by me for the first time on February 2, 1999.
She presented with
a history of increased sun sensitivity and symptoms of burning and
itching of the skin on
sun exposure for approximately 8 months at that time. She also gave a
history of discoloration of the fingers on exposure to cold with fingers
turning pale or somewhat dark
on cold exposure. She also gave history of pain and stiffness in the
knee joints.
Her diagnosis was established as systemic lupus erythematosus with
symptoms of photosensivity, Ryanaud's phenomenon, and athralgias, and
lab findings of leukopenia and numerous other positive serological tests
including positive anti-Ro and anti-La antibodies.
The patient was seen by me on followup on April 1, 1999 when her
examination revealed tenderness of the wrists, elbows, and shoulders,
and pain on range of movement of these joints, worse on the right than
on the left side, and also pain on range of movement of both knees and
tenderness of both ankle joints.
The patient has diagnosis of systemic lupus erythematosus with
manifestations of photosensitivity and sun exposure related skin rashes
and arthralgias with mild arthritis with mild arthritis for which she
would require long term treatment and followup.
Because patients with systemic lupus erythematosus commonly have
increased sun sensitivity, causing skin rashes and rarely worsening
their systemic lupus erythematosus, it is advisable for this patient not
to work outdoors on a regular basis and that she should use sun screen
lotion with SPF of 30 or higher on a regular basis for protection against
minimal sun exposure which one may still undergo during regular life.
In addition, the patient has athralgias and arthritis related to systemic
lupus erythematosus, and it would be further aggravated and worsened by
excessive physical demands of carrying a large bag around the right arm
and shoulder for delivering mail. I would recommend for her to consider
indoor work to avoid major sun exposure and to consider something
equivalent of a desk or clerical job in view of her health problem.
Since systemic lupus erythematosus is a chronic life long condition,
most of the recommendations regarding this condition are also long term
or indefinite.
Complainant's physician sent an additional letter to the agency dated
May 4, 1999, informing the agency that because of complainant's Lupus,
she needed to work indoors to avoid prolonged exposure to the sun,
and avoid work involving her upper extremities and prolonged standing
or walking because of joint problems in her lower body. The physician
stated that complainant's Lupus is a permanent condition.
Disparate Treatment
Complainant alleged that she was subjected to disparate treatment on the
basis of disability when in January 1999; the agency changed her regular
reporting time and disapproved her request for a change of schedule;
told her not to talk and walk around the work floor; and disciplined her
for returning to the office with undelivered mail. The AJ found that
the agency proferred legitimate, non-discriminatory reasons for its
actions that were not persuasively rebutted by complainant as pretext
for unlawful discrimination. Specifically, management explained that
complainant needed to have a later starting time so that she could
maximize the available assistance of other employees and reduce the time
in the office prior to when the last truck delivered mail. The agency
noted that all Compton post office letter carriers likewise began work
at a later starting time than they previously worked in February 1999.
Regarding the letter of discipline issued to complainant for returning to
the office with undelivered mail, the agency responded that complainant's
conduct violated established agency procedure which requires carriers
to call in before bringing mail back to the agency. Upon review,
we find that complainant failed to rebut these explanations with any
persuasive evidence of unlawful discrimination, and therefore affirm
the AJ's finding of no discrimination on these particular claims.
Regarding complainant's claim that the agency delayed paperwork for her
Office of Worker's Compensation Programs (OWCP) claim, we find that the
AJ properly found that complainant failed to present any evidence from
which it could be concluded that the agency discriminated against her
in this matter.
Finally, while the AJ addressed the merits of complainant's claim that
the agency subjected her to discrimination when it instructed her not
to walk and talk on the work floor, we find that this matter is more
appropriately dismissed for failure to state a claim because complainant
failed to specify how this alleged action resulted in harm or loss to
her conditions, terms, or conditions of employment.
Failure to Accommodate
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
As a threshold matter, therefore, one claiming protection under
the Rehabilitation Act must show that she is an individual with a
disability as defined therein. An individual with a disability is one
who has, has a record of, or is regarded as having a physical or mental
impairment that substantially limits one or more major life activities. 29
C.F.R. 1614.203(a)(1). Major life activities include caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. 1614.203(a)(3).
A "qualified" individual with a disability satisfies the requisite skills
and experiences for the job, and is capable of performing the essential
functions of the position with or without reasonable accommodation.
29 C.F.R. � 1630.2(m). With respect to whether complainant is a
qualified individual with a disability, the inquiry is not limited to
the position actually held by the employee, but also includes positions
that the employee could have held as a result of job restructuring
or reassignment. See Van Horn v. United States Postal Service, EEOC
Appeal No. 01960159 (October 23, 1998).
Complainant alleges that the agency failed to accommodate her disability
by requiring her to do work outside in the sunlight. Finally, complainant
alleges that the agency failed to accommodate her when on April 1, 1999,
she was sent home from work after she suffered an injury.
The AJ found that the agency did not have a duty to accommodate
complainant based upon her physician's February 1999 letter because
"the restrictions were phrased as requests and not necessities."
We note that when an individual decides to request accommodation,
the individual or her representative must let the employer know that
she needs an adjustment or change at work for a reason related to
a medical condition. To request accommodation, an individual may
use "plain English" and need not mention the ADA or use the phrase
"reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002, Question 1 (rev. Oct. 17, 2002). Here, complainant's
physician apprized the agency in February 1999 that complainant had the
medical condition of Lupus which caused rashes when exposed to the sun
and also caused a multitude of other symptoms, including inflammations
of the vessels and inflammation of the joints. The physician further
informed the agency that despite the patient's use of long sleeves and
a large hat, she continued to have rashes due to sun exposure secondary
to her lupus. The letter further informed the agency that complainant
needed a light duty assignment which would not expose her to sunlight.
The AJ's conclusion that the agency did not have a duty to accommodate
complainant's alleged disability because "the restrictions were phrases
as requests and not necessities"appears to discredit the physician's
note merely because of its rather polite tone, but the letter clearly
is informing the agency that complainant had a medical condition that
required some adjustment to her working conditions. Accordingly, we
conclude that the physicians's February1999 letter constitutes a request
for an accommodation. See McNeil v. United States Postal Service,
EEOC Appeal No. 05960436 (July 28, 1998).
For purposes of analysis, we assume arguendo that complainant is an
individual with a disability within the meaning of the Rehabilitation Act.
Moreover, it is apparent that complainant requested reassignment as an
accommodation for her disability since she could not perform the core
duties of her position during the relevant time period. Complainant
bears the burden of establishing , by a preponderance of the evidence,
that there were vacancies during the relevant time period into which
complainant could have been reassigned. See Hampton v. USPS, EEOC
Appeal No. 01986308 (July 31, 2002). A complainant can establish this
by producing evidence of particular vacancies, or, in the alternative,
complainant can show that (1) she was qualified to perform a job or
jobs which existed at the agency, and (2) there were trends or patterns
of turnover in the relevant jobs so as to make a vacancy likely during
the time period. Id. Applying these standards, we find that complainant
has not presented any evidence from which a reasonable fact finder could
conclude that there was a vacant position during the relevant time period
for which she was qualified and to which she could have been reassigned.
We therefore conclude that drawing all inferences in complainant's favor,
there is no genuine issue of material fact to be resolved at a hearing.
As a matter of law, complainant is unable to carry her burden of proof to
establish, by a preponderance of the evidence, that she was a qualified
individual with a disability within the meaning of the Rehabilitation Act.
See Bielfelt v. United States Postal Service, EEOC Appeal No. 01A10475
(June 19, 2002). Thus, the AJ properly determined that agency did not
deny complainant reasonable accommodation.
Harassment
Harassment of an employee based on his race, color, sex, national origin,
age, disability, or religion is unlawful, if it is sufficiently patterned
or pervasive. McKinney v. Dole, 765 F.2d 1129, 1138- 39 (D.C. Cir. 1985).
To prevail on a harassment claim, a complainant must show that she
was subjected to harassment because of discriminatory factors, here,
disability and reprisal. In assessing allegations of hostile work
environment/harassment, the Commission examines factors such as the
frequency of the alleged discriminatory conduct, its severity, whether
it is physically threatening or humiliating, and if it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems, Inc., 510 U.S 17 (1993). Usually, unless the conduct is severe,
a single incident or group of isolated incidents will not be regarded
as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982).
In her complaint, complainant alleged that she was subjected to harassment
based on her disability when on June 24, 1999, the postmaster spied
on her and ordered her not to come out of a work room. Upon review,
we find that the alleged actions are not severe nor pervasive enough to
constitute harassment, nor has complainant provided any evidence from
which a reasonable fact-finder could conclude that the actions were
motivated by retaliation or animus against her disability.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision properly referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's disability. Therefore, after a careful review of the
record, including all appellate contentions and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
December 22, 2003__________________
Date