Brenda King, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionJul 28, 2005
01a40710 (E.E.O.C. Jul. 28, 2005)

01a40710

07-28-2005

Brenda King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Brenda King v. United States Postal Service

01A40710

July 28, 2005

.

Brenda King,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 01A40710

Agency No. 4J-606-0163-02

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her 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. 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. For the

following reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Distribution Window Clerk at an agency facility in Chicago, Illinois.

Complainant sought EEO counseling and subsequently filed a formal

complaint on September 20, 2002, alleging that she was discriminated

against on the bases of disability, age (born April 29, 1960), and in

reprisal for prior EEO activity arising under the Rehabilitation Act

when from May 18, 2002 to June 26, 2002 and on July 6, 2002, complainant

was told to go home because there was no work for her to perform on

those days.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision.

In its FAD, the agency determined that complainant failed to

establish prima facie cases of discrimination and accordingly found

no discrimination. On appeal, complainant argues that the agency erred

when it found no discrimination and restates arguments previously raised

during the investigation.

Complainant claimed that she suffered an on-the-job injury in April

2001 that left her with neck pain and shoulder strain on the right side

of her body. Her physician diagnosed her as having right shoulder

myositis/myofascitis and neck strain. The record reveals that the

agency placed complainant in a limited duty assignment from April 27,

2001 through July 5, 2001, which restricted her from lifting, pushing,

or pulling. The record further reveals that on July 20, 2001, the Office

of Workers' Compensation Programs denied complainant's traumatic injury

claim on the basis that there was insufficient evidence to establish

that her condition was caused by a work-related injury. From April 9,

2002 through May 17, 2002, complainant was assigned to work at the Ontario

Street Station, where she worked postage, box mail, and window services.

In an investigative affidavit, complainant contended that she worked

within her medical restrictions while at the Ontario Street Station,

but when she returned to work at the Fort Dearborn Station on May 18,

2002, she was asked to perform duties that were outside her restrictions.

Specifically, she stated that the Station Superintendent would approach

her with an automated postal center (apc) �full of tubs with flats� and

instruct her to push the apc around the workroom floor and drop the tubs

to the carriers while they were in their cases. Complainant objected that

this request was contrary to her restrictions because a tub can weight

from 25 to 35 pounds with first class mail and up to 50 pounds with

second and third class mail, while an apc full of tubs can weight from

500 to 1,400 pounds. �These job assignments required heavy lifting,

pushing and pulling on a daily basis. I am no longer able to lift,

push or pull anything that is heavy, nor can I handle equipment filled to

capacity�due to the injuries sustained on-the-job (right wrist tendonitis,

right arm and shoulder strain),� complainant stated.

She also stated that on June 26, 2002, she was asked to push heavy apc

equipment, which was outside her restrictions. Complainant stated that

when she refused to push the equipment, the Manager of Customer Services

told her to fill out a request for leave form (Form 3971) and go home.

Complainant also maintained that as she left work, the Manager told

her to work the remainder of the work day in the Business Reply Mail

Unit and return to work the next day. Complainant alleged that the

Manager told her she must submit documentation from her physician

so that she could determine what work was available for complainant

within her restrictions. On June 29, 2002, complainant submitted

documentation from her physician to the agency but was out of work from

June 28, 2002 through July 5, 2002, pursuant to her physician's orders.

Complainant maintains that on July 6, 2002, a supervisor instructed her

to go home because her supervisor was not there to approve her return

to work, but before she could clock out, told her to work in finance.

Complainant maintained that she returned to work with the documentation

on July 8, 2002, but the Manager denied her request for accommodation,

forcing her to take leave until July 13, 2002. In the documentation,

complainant's physician stated that complainant was able to return to

duty beginning on July 6, 2002, but was restricted from pushing, pulling,

or lifting more than 10 pounds. Along with the documentation, complainant

submitted a letter dated July 5, 2002, wherein she requested light duty<0>

within her restrictions. Complainant alleged that later on July 8, 2002,

the Manager of Customer Services called her at home and instructed her

not to return to work because she did not have work for complainant to do

at Fort Dearborn at that time. Complainant returned to work on July 13,

2002, and was instructed to work finance, lock box mail, and the window.

In response, the Manager of Customer Services stated that she was

not aware of complainant's restrictions until July 6, 2002, when

complainant presented a return to duty certification from a physician.

She stated that complainant was allowed to work 9.47 hours on July 6,

2002, but because her medical documentation stated that she could only

use her left hand, there was limited work to assign her. �Light duty

assignments require that the employee perform productive work for the

organization in support of our goals and objectives. [Complainant] simply

could not perform productive work,� she stated. She further stated that

complainant was instructed to provide medical documentation and request

light duty in writing, but she refused to do so during the relevant time

period. �It was [complainant's] attitude towards the regulations and

my enforcement of these regulations that caused her to take off and not

return to her job,� she stated. She stated that if an employee failed to

request light duty in writing, they have effectively chosen to use their

sick leave until they can fully perform their assigned job. The Manager

further stated that she was very skeptical that complainant's condition

was related to a job-related injury because her workers' compensation

claim had been denied by the Office of Workers' Compensation Programs.

The Supervisor of Customer Services stated that because complainant's

restrictions only allowed her to use her left hand, there was not a

lot of work for her do during the relevant time period. The Supervisor

stated that the collective bargaining agreement required complainant to

request light duty in writing, but she refused to do so. Both management

officials denied having any knowledge that complainant engaged in previous

EEO activities.

As a preliminary matter, we note that we review the decision on an

appeal from a final agency decision de novo. 29 C.F.R. � 1614.405(a).

Accordingly, we have carefully reviewed the entire record before us in

our attempt to discern whether a preponderance of the evidence warrants

a modification of the agency's ruling. See 29 C.F.R. � 1614.405(a).

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that

a prohibited consideration was a factor in the adverse employment

action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the

agency to articulate a legitimate, nondiscriminatory reason for its

actions. See Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). Once the agency has met its burden, the complainant

bears the ultimate responsibility to persuade the fact finder by a

preponderance of the evidence that the agency acted on the basis of a

prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant alleged that the agency assigned her work outside of

her restrictions on several days. The agency responded that when

complainant verbally requested light duty, it informed her that she

would have to make the request in writing in accordance with agency

regulations, but she failed to do so. The agency maintained that until

complainant submitted the required documentation, she had the option to

perform the assigned tasks or take leave because there was not any work

available for her to do on the relevant days within her restrictions.

Upon review of the matter, we first find that the agency's response

is a legitimate, non-discriminatory reason for the alleged actions.

Article 13 � 2.A of the collective bargaining agreement provides that

employees should submit a written request for light duty that is supported

by medical documentation from a physician. Complainant does not rebut

the agency's claim that she failed to submit a written request for

light duty until after July 8, 2002. Moreover, a review of the record

reveals that twelve comparative employees cited by complainant were

not similarly situated to her. Specifically, seven of the employees

were already limited/light or rehabilitation duty employees during the

relevant time period, another was a part-time clerk who was pregnant

but worked her regular assignment, one was a casual employee, one did

not work at Fort Dearborn during the relevant time period, and one was

a special delivery messenger who did not have any work restrictions.

There is no record the remaining employee had any restrictions or sought

light duty. In contrast, complainant had verbally requested light duty

during the relevant time period, but did not have a light duty assignment.

We conclude that complainant failed to provide any persuasive evidence

that the agency's legitimate, non-discriminatory reason for its actions

was pretext for unlawful discrimination or reprisal.

Harassment

Under the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) she was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2) the

harassment was based on her membership in a protected class. See EEOC

Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

Complainant alleged that she was subjected to harassment when she

was constantly asked to perform duties outside her work restrictions

from May 18, 2002 to June 26, 2002 and on July 6, 2002. However, the

agency provided legitimate, non-discriminatory reasons for its actions

as explained above that were not persuasively rebutted by complainant

as pretext for unlawful discrimination. Consequently, we find that the

agency properly found no harassment.

Reasonable Accommodation

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. �� 1630.2(o) and

(p). A "qualified individual with a disability" is an individual with a

disability who satisfies the requisite skill, experience, education and

other job related requirements of the employment position such individual

holds or desires, and who, with or without reasonable accommodation, can

perform the essential functions of the position. 29 C.F.R. � 1630.2(m).

In this case, we assume arguendo that complainant is an individual with

a disability under the Rehabilitation Act. Complainant contends that the

agency did not accommodate her disability when it failed to place her on

light or limited duty and assigned her tasks outside her restrictions. The

agency maintains that there was no work for complainant to do within

her restrictions on the relevant dates, and the only recourse was for

complainant to take leave on those days. Complainant generally asserts

that she was able to perform several duties within her restrictions

including sorting mail, weighing mail, labeling, working certified mail,

answering the telephone, retrieving packages, and relaying messages.

However, complainant failed to prove that these or other specific tasks

were available for her to do in her job on the particular dates at issue.

Moreover, the Commission finds that complainant could not perform

essential functions of the Distribution Window clerk position, which

included significant lifting that violated complainant's lifting

restrictions. We further find that complainant was requesting

reassignment as a form of accommodation when she objected to doing

specific aspects of her position and asked for a light duty assignment.<0>

However, we find that complainant has not presented sufficient evidence

to support a finding that more likely than not, there was a vacant,

funded position for which she was qualified and to which she could

have been reassigned during the relevant time period. Accordingly, we

conclude that complainant has not established that she is a qualified

individual with a disability under the Rehabilitation Act.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

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

_July 28, 2005_________________

Date

0 1The Commission recognizes that the term "light duty" has a variety

meanings in the employment setting. "Generally, �light duty' refers

to temporary or permanent work that is physically or mentally less

demanding than normal job duties." EEOC Enforcement Guidance on Workers'

Compensation and the ADA, Number 915.002, Light Duty (September 3, 1996)

(includes general discussion on the meaning of "light duty"). In the

context of the Workers' Compensation and the Americans with Disabilities

Act Guidance, the Commission defines the term "light duty" as referring

"only to particular positions created specifically for the purpose of

providing work for employees who are unable to perform some or all of

their normal duties." Id.

0 2We note that an employer is not required to create a light duty

assignment as a form of reasonable accommodation. EEOC Enforcement

Guidance on Workers' Compensation and the ADA, Number 915.002, Light Duty

(September 3, 1996) at Question 27. The agency is only obligated to

provide some form of reasonable accommodation for an individual with

a disability, which may include reassignment. We further note that

under the Rehabilitation Act, there is no requirement that a request

for reasonable accommodation be in writing.