0120091266
07-13-2009
Cheryl L. DeWitte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl L. DeWitte,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091266
Agency No. 4E-500-0035-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 16, 2008 final decision 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.
During the period at issue, complainant was employed as a Part Time
Flexible (PTF) City Carrier at the agency's Moline Post Office in Moline,
Illinois.
On July 8, 2008, complainant filed the instant formal complaint. Therein,
complainant alleged that the agency discriminated against her on the
bases of sex (female), disability (Osteoporosis), and age (54) when:
on May 8, 2008, she was given a termination letter due to attendance
deficiency.1
The record reflects that following a Notice of Proposed Termination
from her previous position as a Postmaster at a different facility
for performance issues, complainant was given another opportunity to
retain her employment. Specifically, complainant was placed in a PTF
City Carrier position at the Moline Post Office effective September
29, 2007. The record further reflects that according to complainant,
beginning January 19, 2008, she was off work for three months due to
a tibial stress facture and that during the time she was off, she was
diagnosed with osteoporosis. Complainant stated that her condition was
permanent and it prevented her from walking on uneven surfaces carrying
mail because it could cause additional fractures. Complainant stated
that on February 7, 2008 and April 14, 2008, she requested light duty and
also requested that she be considered for an open maintenance position,
as an accommodation for her impairment, which would allow her to work on
flat surfaces but received no response. Complainant further stated that
she was never referred to the District Reasonable Accommodation Committee
(DRAC).
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of the right to request
a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond. On December 16, 2008, the agency issued the instant final
decision.
In its December 16, 2008 final decision, the agency concluded that
complainant failed to prove that she was subjected to discrimination
as alleged. The agency determined that complainant did not establish
a prima facie case of sex and age discrimination. Regarding the basis
of disability, the agency found that complainant did not establish that
she was an individual with a disability because she did not show she was
substantially limited in a major life activity. The agency found that
assuming, for the sake of argument, complainant established a prima facie
case of sex, disability and age discrimination, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.
The Delivery Supervisor (DS) stated that he was the deciding official
to terminate complainant from agency employment for unsatisfactory
attendance. DS stated that complainant had been at the station for about
6 months at the time of the removal letter and that she had returned to
the station as a PTF Carrier "on kind of a last chance basis." DS stated
that complainant told him that "she wasn't in shape to carry mail.
She was carrying the mail, but she couldn't complete the route in the
regular time, it would take her eight hours to perform about four hours
of the route. We had to send her help pretty much every day." DS further
stated that management had given complainant "quite a bit of time to fill
the position, she could only work four hours per day, she could only do
two hours in that time, this position requires eight hours of work."
DS stated that during the relevant time, complainant "did have
documentation from her doctor, at first it was eight hours a day, five
days a week, and then she brought documentation that she could only
work four hours per day. She was working four hours per day, we did
give her that accommodation."
Furthermore, DS stated that management could not communicate with her.
Specifically, DS stated that complainant "would call at night and leave a
message that she wouldn't be in, and then we would try to call her back."
DS stated that he relied on Sections 511.43, 665.41, 665.42, and 665.6
of the Employee and Labor Relations Manual in issuing complainant the
termination letter. DS stated "I also think that [Complainant] was
unhappy coming back to Moline as a carrier. She was promoted out of
Moline to be a Postmaster. She then had to return here at bottom of
carrier force. I feel she was disgruntled. She did not want to do the
job....It was the attendance and she couldn't meet the requirements of
the position, so we issued her the removal."
With respect to complainant's allegation that she was never referred to
DRAC, DS stated that he was not aware whether complainant was ever sent
to DRAC.
With respect to complainant's allegation that she requested a transfer to
a maintenance position as an accommodation but received no response, DS
stated "I didn't know anything about the transfer request." Specifically,
DS stated that it was his idea to have complainant transferred to a
maintenance position and that he "mentioned it to the Postmaster, and
he said he didn't believe she could do it physically because it required
heavy pushing, climbing, getting on the roof, lifting." DS stated that
the subject maintenance position is still open and has not yet been posted
but management is "trying to revert it, and that's the same thing with
two clerk positions we have open, so actually nothing is available at
the moment. DS stated that complainant's sex, disability and age were not
factors in his determination to remove complainant from agency employment.
Moreover, DS stated that complainant's removal was issued solely on her
unsatisfactory attendance.
The Postmaster (PM) stated that he was the concurring official concerning
complainant's removal. Specifically, PM stated "at that point we decided
to issue the removal, the supervisors came to me and we talked it over,
and we felt that we had given her every opportunity to be regular in
attendance, there was no improvement in sight, we needed her to be a
full-time PTF carrier, that was the circumstance under which we took
her back, and we came to the conclusion that it was appropriate to issue
the letter of removal."
Further, PM stated that towards the end of October 2007, complainant
called in the office and said she had some kind of off the job injury
and couldn't carry and wouldn't be in. She was off the rest of October
and November. We kept asking for additional information, and she
did eventually provide information from her doctor. The doctor gave
us a return date sometime in January, and she did eventually return."
PM stated, however, that the documentation "didn't request any sort of
accommodation, it just said that she could be out until then." PM stated
that in late January 2008 or February 2008, complainant "did come
back for another week or so, and then she began to call in sick again,
stating that she could not walk. She was off until April, at which time
she gave us a doctor's statement stating that she could return to work
four hours per day." PM stated that complainant returned to work for
4 hours per day but "then we got a modification from her doctor stating
that she could only work four hours per day five days per week."
With respect to complainant's allegation that she was never referred to
DRAC, PM stated "I'm not aware of whether [Complainant] was sent to DRAC.
I didn't refer her."
With respect to complainant's allegation that she requested a transfer to
a maintenance position as an accommodation but received no response, PM
stated that the Moline Post Office had vacant maintenance position which
complainant expressed interest. PM stated that the subject position
never actually became available and was still vacant as the district
had not given them the approval to fill it. PM stated that management
notified complainant that if she "could come to work we would look at
it, but those positions all require employees to be on their feet eight
hours per day, just like the carrier positions, so I don't know how she
could take one of those positions."
On appeal, complainant contends that during the relevant period there was
a clerk position posted. Specifically, complainant states management's
statement "of there not being a clerk position open was false. I did
not expect to be promoted, but simply moved to a position where my
health would not be adversely affected." Complainant states that she
had proper documentation from her physician for all of her absences.
Complainant further states "my only choice was to go against my doctor's
advice and keep working risking further injury in order to keep my job.
I do not understand what the USPS wanted from me as I was only doing
what my doctor ordered." Finally, complainant resubmits the same medical
documentation that was presented to the agency.
Disparate Treatment
A claim of disparate treatment is examined under the three-party 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
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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Reasonable Accommodation
Assuming complainant is disabled pursuant to the Rehabilitation
Act, and that she otherwise established a prima facie case of
disability discrimination, the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. Specifically, complainant
was terminated due to unsatisfactory attendance. The record reflects
that complainant contends that her absences have been related to her
disability. Specifically, complainant states that beginning January 19,
2008, she was off work for three months due to a tibial stress facture and
osteoporosis which prevented her from walking on uneven surfaces carrying
mail because it could cause additional fractures. Complainant further
states that on February 7, 2008 and April 14, 2008, she requested light
duty and also requested that she be considered for an open maintenance
position, as an accommodation for her impairment, which would allow
her to work on flat surfaces but received no response from management.
The record reflects that after complainant brought documentation from
her physician stating that she could only work four hours per day, the
agency accommodated complainant by having her work four hours per day.
As for these particular dates, therefore, the agency could not have been
motivated by disability-based animus.
We turn therefore, to addressing the occasions on which complainant
states she was absent because of her disability. 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 undue hardship. 29 C.F.R. �� 1630.2(o) and (p). In this case,
although the EEOC's Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, Notice
No. 915.002 at question 16 (October 17, 2002) indicates that "[p]ermitting
the use of accrued paid leave, or unpaid leave, is a form of reasonable
accommodation when necessitated by an employee's disability," there is
no evidence that complainant requested (or supported her request with
medical documentation), leave as a form of reasonable accommodation.
Additionally, we note that the EEOC's Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities at Question
31 states that reasonable accommodation is "prospective" and employers
are not required to excuse past misconduct. Accordingly, based on this
record, complainant has not persuaded the Commission that the agency
removed her from employment in violation of the Rehabilitation Act.
As an initial matter, we find that complainant, on appeal, has not
provided any persuasive argument regarding the propriety of the agency's
finding of no discrimination. The Commission determines that the agency
conducted a thorough investigation.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision because the preponderance of the record evidence does
not establish that discrimination occurred.
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
July 13, 2009
__________________
Date
1 For purposes of analysis only and without so finding, the Commission
assumes that complainant is an individual with a disability.
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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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