0120071110
07-10-2009
Christine E. Koczera, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christine E. Koczera,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071110
Hearing No. 160-2005-00532X
Agency Nos. 4B-140-0003-05, 4B-140-0003-06
DECISION
On December 18, 2006, complainant filed an appeal from the agency's
November 27, 2006 notice of final action 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a rural carrier at the agency's post office in Avalon, New York.
Postmaster 1 was head of the post office prior to Postmaster 2 taking over
in March 2005. Complainant filed an EEO complaint dated January 14, 2005,
alleging she was subjected to discrimination on the bases of age (53)
and disability (left shoulder rotator cuff tear) when: since October
14, 2004, Postmaster 1 refused to discuss her safety and reasonable
accommodation concerns. Complainant subsequently filed a second EEO
complaint dated January 10, 2006, alleging that she was discriminated
against on the bases of disability (left shoulder rotator cuff tear)
and in reprisal for prior protected EEO activity when:
1. On December 15, 2005, Postmaster 2 withheld complainant's paycheck,
failed to inform her of a new office procedure, discussed her medical
accommodations in the presence of co-workers, made an inquiry of
her medical condition, and threatened her with a fitness-for-duty
examination;
2. On December 21, 2005, Postmaster 2 asked complainant if she lived
alone, requested her residential address, and she was telephoned at home;
3. On December 24, 2005, complainant was not allowed to leave work for
a family emergency;
4. On January 6, 2006: (a) complainant was denied reasonable accommodation
when her wing case was removed; (b) complainant was subjected to hostility
regarding door chocks as an accommodation; (c) a demand for a list of all
her accommodations was made; and (d) a co-worker was used as a witness
in a conversation concerning her accommodation;
5. On January 18, 2006, Postmaster 2 subjected complainant to
intimidation when: (a) he mislead her by attempting to schedule a
reasonable accommodation meeting without her legal counsel present; and
(b) he communicated with numerous non-managerial employees concerning
her EEO complaint and other personnel matters.
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 consolidated the
two complaints for processing. The agency filed a motion for summary
judgment which complainant opposed. The AJ granted the agency's motion
for summary judgment. The AJ issued a decision without a hearing on
September 6, 2006, finding complainant failed to prove that she was
subjected to discrimination as alleged.
The agency subsequently issued a notice of final action fully implementing
the AJ's decision. The agency found that complainant failed to prove
that she was subjected to discrimination as alleged.
Thereafter, complainant filed the present appeal. On appeal, complainant
contends that she is a qualified individual with a disability.
Complainant states she was subject to an adverse action when the
agency denied her reasonable accommodation. Complainant notes that
Postmaster 2 knew of her need for reasonable accommodation when he took
over from Postmaster 1 and also knew that complainant had filed other
EEO complaints. Complainant contends that Postmaster 2 agreed that
Postmaster 1 operated within agency standard operating procedures for
safety and also stated that Postmaster 1's configuration of her cases
was unsafe. Complainant contends that this contradiction by Postmaster
2 constitutes a genuine issue of material fact that prevents summary
judgment in this case.
Complainant states that when Postmaster 2 came up with a plan to rearrange
cases and as a result removed the wing case from her, he did not have a
"compelling or urgent business reason whatsoever to remove the wing case."
Complainant states that the wing case was an accommodation granted by
a previous postmaster and argues that the removal of this accommodation
is sufficient to sustain a finding of discrimination.
Complainant claims that Postmaster 2's withholding of her paycheck,
Postmaster 2's failure to notify her of the new procedure for signing
out keys for postal vehicles, and Postmaster 2's discussion of her
medical/disability issues in public are part of a pattern and practice
of retaliation. Complainant notes Postmaster 2 threatened complainant
with a fitness-for-duty examination and claims that this unprofessional
action is part of a pattern and practice of retaliation. Complainant
also states that Employee X underwent surgery to part of her hand and
was not required to go for a fitness-for-duty examination.
In response to complainant's appeal, the agency argues the AJ properly
determined there were no genuine issues of material fact necessary
for a hearing. The agency states that complainant did not establish
a prima facie case of age, reprisal or disability discrimination.
The agency argues that even if complainant could establish a prima
facie case under these bases, she failed to offer evidence to rebut the
agency's legitimate, non-discriminatory reasons for the actions taken.
Moreover, the agency stated complainant has not offered sufficient
evidence to support her "implicit allegation of harassment." With regard
to her claim that she was denied a reasonable accommodation, the agency
states complainant was accommodated and was not forced to work beyond
her medical restrictions.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Upon review of the record, we find a decision without a hearing was
appropriate as complainant failed to identify any genuine issues of
material fact that were in dispute. With regard to her claim that
Postmaster 1 refused to address her safety concerns, complainant states
that she complained to Postmaster 1 that she was having difficulty
opening a customer's mailbox on her delivery route. As a result,
Postmaster 1 inspected the mailbox and left a letter for the customer
that the mailbox needed to be secured on a heavier post. Complainant
states that Postmaster 1 then told her the mailbox had been repaired
and told her to resume delivery at the mailbox. On October 14, 2001,
complainant attempted to deliver to the mailbox but was not able to
open the mailbox and said she hurt her shoulder while attempting to
open the mailbox. The Postmaster states he thereafter went to talk
to the customer in person and the mailbox was properly fixed. In her
affidavit, complainant acknowledges that the mailbox was finally placed
on a proper post. Complainant states that after October 14, 2001, she
requested that Postmaster 1 temporarily lower her lifting restriction
and she claims Postmaster 1 refused to address the request with her.
The record shows that Postmaster 1 arranged for the weighing and marking
of parcels to ensure that complainant's weight limitations were being met.
Postmaster 1 stated that when they would "miss" a parcel, complainant
would bring it to his attention and he would remove it from her cart and
instruct her to leave a note. Upon review, we find Postmaster 1 addressed
her concerns about the hard to open mailbox. Moreover, complainant failed
to show that she was forced to work beyond her medical restrictions.
With regard to her claim that Postmaster 2 withheld her paycheck,
complainant claims that at 9:00 a.m. on December 15, 2001, she left a
note for Postmaster 2 with Clerk A requesting her paycheck. Complainant
acknowledges she received her paycheck on December 15, 2001, by 3:00
p.m. We find complainant failed to show that the agency's actions with
regard to her paycheck were motivated by discriminatory animus.
With regard to her claim that Postmaster 2 failed to inform her of the new
procedure for signing out keys, the record shows that the new procedure at
issue was implemented on November 18, 2005. Complainant was on leave on
November 18 and Postmaster 2 was on leave November 19, 2005. Postmaster 2
was working in the box section on November 21, 2005, when complainant
noticed the new procedure and asked Postmaster 2 about the procedure.
Postmaster 2 stated that he forgot to tell complainant about the new
procedure because she was on leave the day it was implemented. Postmaster
2 stated that when he was asked about the procedure by complainant he
advised her of the procedure. Complainant was not subject to any harm
as a result of the delay in being informed of the change in procedures.
We find complainant failed to show that Postmaster 2's actions were a
pretext for discrimination.
With regard to her claim that Postmaster 2 discussed her accommodations
and medical condition in public, complainant alleged that on December
20, 2005, Postmaster 2 asked her if there was something wrong with
her shoulder and arm, asked whether they were in working condition,
and asked whether she was disabled. Complainant states she responded
there was something wrong with her left arm and she told him she did not
want to discuss it in close quarters with other carriers next to her.
Postmaster 2 states that he observed complainant holding her arm and
asked if there was something wrong. We find there is no indication that
anyone overheard the conversation and there is no evidence that there
was a prohibited medical inquiry or that confidential medical information
was disclosed as a result of the incident on December 20, 2005.
With regard to the threatened fitness-for-duty examination, complainant
states she got a "nutting cart" stuck in between the doors and Postmaster
2 told her he was sending her for a fitness-for-duty examination because
she could not push the small nutting cart out the doors and needed help.
Postmaster 2 stated that complainant told him she banged her knee and
informed him she could not open the doors. Postmaster 2 told complainant
he was going to send her for a fitness-for-duty examination based on her
inability to open the doors and his concern for safety. Postmaster 2
consulted with Labor Relations and the Medical Unit and was advised not
to seek the subject fitness-for-duty examination. The fitness-for-duty
examination was not scheduled. We find complainant failed to show that
Postmaster 2's actions were based on discriminatory animus.
Complainant also alleges she was subject to discrimination when Postmaster
2 asked complainant for her residential address, asked if she lived
alone, and she was telephoned at home. Postmaster 2 stated he asked for
complainant's residential address and whether she lived alone because of
an experience in another office where an employee living alone had died.
The record reveals that at Postmaster 2's instruction, Clerk A called
complainant at home in connection with a customer's concern about whether
complainant had delivered mail to the customer on the day in question.
Upon review, we find complainant failed to show that the agency's
articulated reasons for its actions were a pretext for discrimination.
Complainant also claims that on December 24, 2005, she was not allowed
to leave work for a family emergency. The record reveals Postmaster
2 received a call from complainant's daughter, asking to speak to
complainant regarding an emergency matter. Postmaster 2 went out and
found complainant on her route and immediately informed her to call
her daughter. Postmaster 2 gave complainant his cell phone to use and
she asked if he could provide her with a substitute carrier to finish
her route. Postmaster 2 attempted to have the substitute carrier for the
route located; however, the substitute could not be immediately located.
By the time Postmaster 2 was able to secure a part-time flexible carrier
to take over the route, approximately one hour after the emergency
arose, complainant had completed the route and was on her way back to
the post Office. We find complainant failed to show that the agency's
actions were a pretext for discrimination.
Complainant also claimed that on January 6, 2006, she was denied
reasonable accommodation when her wing case was removed, she was subjected
to hostility regarding "door chocks" as an accommodation, Postmaster 2
demanded a list of all her accommodations, and a co-worker was used as
a witness in a conversation concerning her accommodation. The record
reveals Postmaster 2 removed the winged case on the grounds that it was
not being used properly by complainant. Postmaster 2 informed complainant
that if her delivery load increased to the point of justifying the wing
case, he would restore it. Although complainant states that the removal
of the wing case and the changed configuration occurring thereafter
creates difficulty for her, she failed to show that she was forced to
work in violation of her medical restrictions in place at the time.
While the record indicates that Postmaster 2 gave complainant the door
chocks in the presence of Person Z, Postmaster 2 stated that Person Z
served as acting supervisor in his absence. Moreover, we find there is
no indication that Postmaster 2's actions with regard to the door chocks
were taken based on discriminatory animus.
As a result of complainant's difficulty in opening the doors, on January
6, 2006, the Postal Doctor and Person X from the safety office came
down to investigate complainant's case and found that complainant was
being accommodated with regard to her being able to pitch mail, the
top shelf of the case not being utilized, the availability of a rise
platform for complainant to stand on, and the availability of a scale to
weigh packages.1 The Postal Doctor and Person X examined both the large
and small nutting and found the potential for bumping the double doors
existed with both nutting carts. The Postal Doctor suggested propping
one side of the door open with a wedge and for complainant to prop open
the other side of the doors herself and move the small nutting in and out
the door. Thereafter, Postmaster 2 then gave complainant wedges to prop
the door open. While complainant might not have received the desired
accommodation of installing automatic doors, complainant failed to show
that the use of chock blocks/wedges was not a reasonable accommodation.
Furthermore, despite complainant's claim that she be allowed to use the
large nutting versus the small nutting cart, we find there is no such
requirement in her medical restrictions. Moreover, although complainant
claims that she was subject to discrimination when Postmaster 2 asked
for a list of her accommodations, the record reveals complainant never
provided the list and was not subject to an adverse action as a result
of her failure to provide the list. We find that the request for a list
of requested accommodations by Postmaster 2 was reasonable in light of
the agency's attempt to ensure complainant was properly accommodated.
Finally, complainant alleged that on January 18, 2006, Postmaster 2
subjected complainant to intimidation, when he mislead her by attempting
to schedule a reasonable accommodation meeting without her legal
counsel present, and, he communicated with numerous non-managerial
employees concerning her EEO complaint and other personnel matters.
The record reveals that a District Reasonable Accommodation Committee
(DRAC) meeting was scheduled on January 18, 2006. Although Postmaster
2 informed complainant of the meeting, the meeting was not scheduled by
Postmaster 2. The meeting was subsequently cancelled. Complainant failed
to show that she was misled by Postmaster 2 about a meeting, or, even
if she was misled, that she was harmed by such an action. Moreover,
we find complainant failed to show that Postmaster 2 communicated
with non-managerial employees concerning her EEO complaint and other
personnel matters.
Accordingly, the agency's notice of final action finding no discrimination
is AFFIRMED.
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
July 10, 2009
__________________
Date
1 In addition to these accommodations, Postmaster 2 also noted complainant
was given the use of an LLV and two foot trays were broken down into
one foot tray for her.
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0120071110
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071110