0120071164
05-15-2009
Connie G. Castillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Connie G. Castillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071164
Hearing No. 460-2006-00143X
Agency No. 1G-773-0002-06
DECISION
On December 27, 2006, complainant filed an appeal from the agency's
November 30, 2006 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq., Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Houston Air Mail Center
(AMC) facility in Houston, Texas. Complainant has worked for the agency
since 1983. In August 2004, complainant accepted an offer of a modified
assignment on Tour I with the hours of 10:00 p.m. to 6:30 a.m. The duties
of this assignment included signing and throwing express mail, laying
sacks on flats and pallets, elbowing priority and express pouches, making
labels and placards for outgoing mail, providing relief in the office on
Monday nights, monitoring security monitors, and answering the phones.
In October 2004, complainant suffered an injury to her right hand when
she was bitten by an insect. As a result of the injury complainant
suffered nerve damage, swelling of the finger, stiffness and occasional
lack of movement in her right hand. After the October 2004 injury,
complainant continued to work on the August 2004 modified assignment.
Complainant's condition was reassessed monthly by her doctors.
Complainant's limitations have changed over the years. The record
contains an October 29, 2004 Duty Status Report noting among other
limitations complainant is restricted in lifting more than 10 pounds for
eight hours a day, no pulling/pushing, no simple grasping, and no fine
manipulation. On April 4, 2005, complainant was restricted to occasional
lifting of 20 pounds, frequent lifting of 10 pounds, and constant lifting
of only negligible weight. In November 2005, complainant was limited to
lifting up to 10 pounds up to four hours per day and was permitted to
work for four hours of no lifting. On January 16, 2006, complainant's
restrictions were lifting up to 10 pounds and no use of the right arm.
In a January 18, 2006 statement, complainant's doctor stated he could
not determine the date of recovery from the injury; however, he stated it
would probably take up to a year for complainant to recover. On January
23, 2006, complainant's restrictions were lifting up to 20 pounds and
no use of the right arm. On March 22, 2006, complainant was restricted
to lifting up to 10 pounds and no use of the right arm. In May 2006,
complainant was limited to 15 pounds of lifting and no use of right arm.
Complainant was completely incapacitated due to her right hand from May 12
- 17, 2006. In June 2006, complainant could perform no lifting with her
right hand and was completely incapacitated from June 5 - 6, 2006.
On April 4, 2006, complainant was issued a new modified assignment on
Tour II. The duties of the new assignment included monitoring security
monitors, answering telephones in the supervisor's office, and writing
and making placards. The new hours were 6:00 a.m. to 2:30 p.m.
On April 21, 2006, a male employee (Person A) was offered an assignment
as a Modified Mail Processing Clerk on Tour I with work hours form
9:00 p.m. - 5:30 a.m. The duties of the modified assignment included
monitoring security monitors, answering the telephone in the supervisor's
office, writing and making placards, and express sign-ins/hang and label
express sacks. The physical requirements of the modified assignment
were: ability to stand and walk up to eight hours, ability to lift up
to 20 pounds occasionally for up to six hours, and ability to write up
to six hours.
On May 24, 2006, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of sex (female), disability (right
hand), and age (42), when: complainant was issued a new modified job
assignment in April 2006, which changed her reporting assignment from
Tour I to Tour II.
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. On October 18, 2006, the agency filed a motion for a
decision without a hearing. Complainant responded to the agency's motion
on October 30, 2006. Over complainant's objections, the AJ assigned to
the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on November 27, 2006.
In her decision, the AJ found complainant did not establish a prima facie
case of age discrimination since she failed to show that she was treated
differently than someone outside her group under similar circumstances.
The AJ assumed that complainant established a prima facie case of sex
discrimination noting the employee assigned to her preferred tour was
a male. With regard to her disability claim, the AJ found complainant was
substantially limited in caring for herself and therefore was disabled.
The AJ noted that the agency articulated legitimate, non-discriminatory
reasons for its actions to move complainant to Tour II: to accommodate
the changing mail flow, the change in her medical restrictions, and
there was insufficient work for complainant to perform for eight hours
on Tour I. Additionally, the AJ noted the agency explained that Person
A moved from Tour III to Tour I based on a grievance settlement.
The AJ found complainant did not show that the agency's actions were
motivated by her disability, sex or age. With regard to the change in
complainant's medical restrictions, the AJ noted that the March 2006
restrictions were somewhat more limiting than her prior restrictions
in that her lifting limitation changed from 20 to 10 pounds; however,
the AJ acknowledged the agency had been working around her changing
limitations without moving her to another tour for years. The AJ noted
that the duties assigned to Person A on Tour I were significantly like
those assigned to complainant while she was on Tour I. With regard to
complainant's argument that if there was eight hours of work for Person
A on Tour I then she should have been left on the tour since she was
senior to Person A, the AJ found that the issue of seniority should be
raised in the grievance process. The AJ noted the reason Person A was
placed on Tour I was because of a grievance he had filed concerning the
tour he had previously been assigned. The AJ found no evidence that the
individuals involved in the grievance intentionally displaced complainant
from Tour I as a result of discrimination.
With regard to a denial of accommodation claim, the AJ noted complainant
had been in a modified position for years as a result of an on-the-job
injury. The AJ noted that when an individual with a disability needs
an accommodation, an employer must first look at the job the individual
was doing at the time the accommodation became necessary. The AJ found
"it is clear the complainant could not perform the essential functions
of the job she had or a regular job to which she could be transferred."
The AJ noted the agency created a job for complainant pursuant to the
workers' compensation statutes. The AJ acknowledged that "[m]aking up a
job is not required by the Rehabilitation Act." However, the AJ noted
that the record showed that "complainant was able to perform the made
up modified job which the agency invented for her." The AJ noted that
the Rehabilitation Act does not require the agency to leave complainant
on the tour of her choice.
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.
Complainant filed the present appeal upon receipt of the agency's final
action. On appeal, complainant states that for the two years prior
to the incident at issue, she worked in the AMC Office, answering the
phone, monitoring the monitors, and making labels. Complainant states
that she held the modified assignment given to her in August 2004,
for three months only. She states that after the injury to her hand
in October 2004, she was given a new assignment to work in the office
answering phones, monitoring, making labels, and serving as relief.
Complainant claims that the agency contradicts itself when it says
there was not enough work for her on Tour I and then shortly thereafter,
Person A was moved to Tour I to perform the same work complainant had
been doing. Complainant acknowledged that the agency accommodated her
in that she "was given the same job on a different Tour." However,
she states that Person A, a male, was allowed to perform her duties on
Tour I while she had more seniority and was moved to Tour II. Moreover,
complainant states that after working on Tour II for a month she was
given a new modified job that went against her restrictions and caused
her an on-the-job injury.
In response to complainant's appeal, the agency argues that the AJ
properly found there were no genuine issues of material fact in dispute.
The agency claims the AJ correctly found complainant failed to show that
the agency discriminated against her.
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, we find the AJ properly found that complainant failed to
identify any similarly situated employees with regard to her claim of age
discrimination. Specifically, the record reveals that complainant was 42
years old at the time she was removed from Tour I. Although complainant
claims that she was subjected to discrimination when Person A was placed
on Tour I shortly after she was removed from that tour, the record shows
that Person A, 58, was substantially older than complainant. Thus,
complainant failed to show that her age played a role in the agency's
decision to move her to Tour II.
With regard to her claims of sex and disability discrimination, we find
the agency articulated legitimate, non-discriminatory reasons for moving
complainant to Tour II. The agency stated complainant was moved to Tour
II as a result of the change in her medical restrictions in March 2006,
and the fact that there was no longer work within her restrictions on Tour
I. While the record reveals that Person A was placed on Tour I shortly
after complainant was removed from that tour and was assigned similar
duties to those that complainant had been performing, the record reveals
this was done as a result of a grievance Person A had settled. There is
no evidence that the individuals involved in the grievance intentionally
displaced complainant from Tour I as a result of her sex or disability.
We find complainant has failed to show that the agency's articulated
reasons for its actions were based on discriminatory animus.
It is not clear that complainant is actually claiming that she was
denied a reasonable accommodation in the instant complaint. To the
extent that she is claiming a denial of a reasonable accommodation, the
only accommodation she appears to be requesting is to have remained on
Tour 1. Complainant has not shown how her claimed disability requires
her to stay on Tour I or how working on Tour II somehow violates any of
her medical restrictions. Thus, we find that complainant has not shown
that she was denied a reasonable accommodation. We also note that the
AJ found, and complainant does not dispute, that complainant could not
perform the essential functions of the job she had at the time her need
for an accommodation arose.1
We note complainant claims on appeal that she was removed from Tour II
one month after she was given the April 2006 modified assignment and that
the new modified job violated her medical restrictions. To the extent
complainant is alleging that she was subjected to discrimination with
regard to a May 2006 modified assignment, we note that this claim was not
accepted for processing by the agency. Moreover, we note complainant did
not challenge the definition of the accepted issues to the agency or while
her case was pending before the AJ. Therefore, we find this issue is
not part of the subject complaint and will not be addressed on appeal.
Accordingly, the agency's 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 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
May 15, 2009
__________________
Date
1 We do not address in this decision whether complainant was a qualified
individual with a disability.
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0120071164
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071164