0120070958
03-10-2009
Billie G. McDowell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Billie G. McDowell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070958
Hearing No. 310-2006-00180X
Agency No. 1G761002306
DECISION
On December 9, 2006, complainant filed an appeal from the agency's
November 10, 2006 final order concerning her equal employment opportunity
(EEO) complaint alleging 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 this complaint, complainant worked
as a Mail Processing Clerk, PS-05, at the agency's General Mail Facility
in Fort Worth, Texas. On February 18, 2006, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
race (African-American), disability (bilateral carpal tunnel, L-5/S-1
herniated disc, displaced cervical disc and bi-lateral shoulder upper
arm), and age (44 at the relevant time) when on November 28, 2005,
management changed her reporting schedule and days off.
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). Complainant timely
requested a hearing. The AJ assigned to the case held a hearing on
September 18, 2006 and issued a decision on October 17, 2006, finding
no discrimination. 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. On appeal, complainant contends that the AJ
erred in finding no discrimination. Complainant reiterates her contention
that the agency failed to provide her with a reasonable accommodation,
and that it subjected her to unlawful disability discrimination by
denying her a position on the daytime tour (Tour 2).
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.
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, 134 (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 find that, assuming for the sake of argument only, complainant
established a prima facie case of race, age, and disability
discrimination, the agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record
reflects that as a result of injuries sustained on the job, complainant
filed a claim with the Office of Workers' Compensation Programs (OWCP)
and received a modified job assignment on or about August 2, 2001,
with duty hours of 8:30 a.m. to 5:30 p.m. and the scheduled days off
of Saturday and Sunday. (Report of Investigation (ROI), Affidavit A,
Attachment 7; Hearing Transcript (HT), 10). Complainant states that she
was, however, physically unable to perform the duties of the modified
job assignment and was, therefore, taken off duty as of August 2, 2001.
(H.T. 18-19). During the period that complainant was off work, her
position was abolished, and complainant was notified by letter dated
October 16, 2003, that she had been converted to the position of full-time
unassigned regular. Complainant was also advised that this change in
position might necessitate a change in her duty hours and scheduled
days off. (R.O.I., Affidavit A, 8).
The record shows that, by letter dated November 17, 2005, management
informed complainant that her request for light duty had been approved,
effective November 26, 2005. The record also shows that complainant
was assigned to the hours 6 p.m. to 2:30 a.m. (Tour 3) with Mondays and
Tuesdays off. Id. at 9. Management officials testified that complainant
was assigned to Tour 3 because most of the manual distribution work, such
as that performed by complainant, is done on that tour. (H.T., 134).
Specifically, the Manager Distribution Operations (MDO) testified that
complainant was assigned to Tour 3 because "that's where [the] operations
needed people to work ... that's where the operational need is/was."
(H.T., 137). The MDO further stated that the staffing on Tour 2 had
"decreased tremendously" and that management would not assign complainant
to that tour when there was no operational need for additional personnel
during that shift. Id. We concur with the AJ's finding that management's
statements are supported by the evidence of record, and that complainant
failed to proffer any evidence to show that this articulated reason is
a pretext for unlawful discrimination.
With regard to complainant's claim of disability discrimination, we find
that, even assuming for the purposes of analysis only that complainant
is an individual with a disability and established a prima facie case of
discrimination, the agency met its obligations under the Rehabilitation
Act to provide a reasonable accommodation. The record reflects that since
November 2005, the agency has provided complainant with a permanent light
duty position commensurate with her medical restrictions. (H.T., 39-40).
We note that, although protected individuals are entitled to reasonable
accommodation under the Rehabilitation Act, they are not necessarily
entitled to their accommodation of choice. See Enforcement Guidance:
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, EEOC No. 915.002 (October 17, 2002) at 16. Here,
although it is clear that complainant would prefer to have a light duty
position on Tour 2, we concur with the AJ's finding that assignment
to a permanent light duty position on Tour 3 constitutes a reasonable
accommodation. Accordingly, we concur with the AJ's finding of no
discrimination and 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 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 10, 2009
Date
2
0120070958
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
5
0120070958