Darlynn Bell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 6, 2000
01974429 (E.E.O.C. Mar. 6, 2000)

01974429

03-06-2000

Darlynn Bell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Darlynn Bell v. United States Postal Service

01974429

March 6, 2000

Darlynn Bell, )

Complainant, )

)

v. ) Appeal No. 01974429

) Agency No. 1C-431-0003-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On May 6, 1997, the complainant initiated an appeal from a final decision

of the agency dated April 14, 1997 concerning her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and �501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.<1> The

appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

as 29 C.F.R. � 1614.402(a)), and is accepted under 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified as 29 C.F.R. � 1614.401(a)).

ISSUE PRESENTED

Whether the complainant was discriminated against on the bases of

her disability (lumbar muscle strain) and reprisal (EEO activity)

when she was scheduled for a second fitness for duty examination in

September 1996.

BACKGROUND

The complainant filed an EEO complaint alleging the above issues.

Following an investigation, the agency notified the complainant of

her right to request a hearing before an EEOC Administrative Judge.

She requested a final agency decision without a hearing.

The complainant is employed as a mail handler with the agency's Columbus,

Ohio Processing and Distribution Center. In August 1995 she requested

and was granted light duty to meet her restrictions against lifting

above 50 pounds, repeated bending, and operating a motor vehicle crane

or tractor. The record contains periodic light duty slips completed by

the complainant's private physician. A slip in September 1995 stated

that the complainant had lumbar muscle strain. It indicated she could

work 10 hours a day, 6 days a week and could lift up to 50 pounds, but

was restricted from lifting up to 70 pounds. It prohibited bending,

repeated bending, and operating a motor vehicle crane or tractor.

These restrictions were estimated to last three to six months. Light duty

slips completed by this private physician in November and December 1995

contained the same restrictions, except they were clarified or changed to

no stooping, kneeling or bending with the back, and no repeated bending.

Light duty slips completed by this private physician in January, February

and April 1996 were eased to allow a 12 hour work day.

At the agency's behest, the complainant underwent a fitness for duty

examination in May 1996. It was conducted by Contract Physician 1.

The fitness for duty report recounted that the complainant had a back

injury in 1989, and an aggravation thereof in June 1990. It recounts

she had physical therapy, and was on light duty for about two years,

around which time she switched to a unit with easier lifting requirements.

It recounted that the complainant stated she changed to a different unit

again in early 1995, where she had an increase of low back pain. The

fitness for duty report had a diagnosis of lumbrosacral strain. It opined

that the complainant had not reached maximum medical improvement, and

estimated that when she did she would have a permanent partial disability

of 5%. A light duty slip completed by the complainant's private physician

in May 1996, after the fitness for duty report, continued with the same

restrictions the private physician previously gave in 1996.

At the behest of the complainant's second level supervisor, the

complainant underwent the second fitness for duty examination at issue in

September 1996. It was conducted by Contract Physician 2. The fitness

for duty report noted that the complainant had physical therapy from

August 1995 to October 1995, where it was discovered one leg was shorter

than the other. The fitness for duty report stated one leg was 1.5 to 2

centimeters longer than the other. Recounting a physical therapy note,

it stated the complainant was given a heel lift which resulted in a

significant reduction in low back pain. It opined that the complainant

had an impairment of 5% at most, and no restrictions.

With regard to the complainant's reprisal claim, the second level

supervisor stated she was a responding witness in January 1996 on an

EEO claim by the complainant.

ANALYSIS AND FINDINGS

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides

the analytical framework for proving employment discrimination in

cases in which disparate treatment is alleged and no direct evidence

of discrimination has been presented. Although McDonnell Douglas is a

Title VII case, its analysis is also applicable to disparate treatment

cases brought under the Rehabilitation Act. See Prewitt v. U.S. Postal

Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981). McDonnell Douglas

requires the complainant to first establish a prima facie case. If the

complainant succeeds, the agency's burden then is to articulate some

legitimate, nondiscriminatory reason for its action in order to rebut

the prima facie case of discrimination. Finally, the complainant has

the opportunity to show, by a preponderance of the evidence, that the

agency's stated reason is a pretext for discrimination. The ultimate

burden of proof that discrimination took place is on the complainant.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981).

As a threshold matter, one bringing a claim of discrimination on the

basis of disability must show that she is a qualified individual with

a disability within the meaning of the Rehabilitation Act. Under 29

C.F.R. � 1630.2(g), the definition of an individual with a disability

is one who (1) has a physical or mental impairment that substantially

limits one or more major life activities, (2) has a record of such

an impairment or (3) is regarded as having such an impairment. Major

life activities include caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. 29

C.F.R. � 1630.2(g)(i).<2>

The complainant has the impairments of back pain and shortness in one leg

of 1.5 to 2 centimeters. Light duty slips by the complainant's private

physician have restrictions against lifting over 50 pounds, stooping,

kneeling, or bending with the back, and repeated bending. The complainant

affirmed that she was restricted from lifting over 50 pounds, repeated

bending, and operating a motor vehicle crane or tractor, but could stoop.

These impairments; and restrictions, and even if accepted as permanent,

do not constitute a substantial limitation on a major life activity.

Also, the complainant has taken the measure of using a heel lift to

mitigate the impairment of her shorter leg. Sutton v. United Air Lines,

Inc., 527 U.S. 471, 119 S.Ct. 2139, 2146 (1999).

Further, the complainant has not established that she has a record of an

impairment which limits a major life activity. There is no indication

in the record that her restrictions were ever greater than those stated

above for a significant length of time. Finally, the record does not

show that the agency regarded the complainant as having a disability.

The complainant is not an individual with a disability as defined by

the regulations. Accordingly, she has failed to establish a prima facie

case of disability discrimination.

Since the agency articulated legitimate, nondiscriminatory reasons

for issuing the complainant a notice of removal, as set forth below,

we may proceed directly to whether she demonstrated by a preponderance

of the evidence that the agency's reason was merely a pretext to hide

discrimination based on reprisal. United States Postal Service Board

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

The second level supervisor stated the complainant was on temporary

light duty for a year, which is no longer temporary status, and could not

perform the core functions of the mail handler position. This supervisor

stated she initiated the second fitness for duty examination because

she needed to know if the complainant would ever return to regular duty.

Contemporaneous agency administrative paperwork processing the request

for the second fitness for duty examination corroborates this was the

reason the second level supervisor's gave for requested the examination.

In an effort to prove pretext, the complainant argued she was treated

differently than others. She failed to establish disparate treatment.

The complainant argues that it was unusual to schedule two fitness

for duty examinations only months apart, and its purpose was to remove

the complainant from her bid job. She argued, without corroboration,

that she performed the core functions of her job. The complainant did

not show that the agency's reason for requesting the second fitness for

duty examination was pretext to mask reprisal discrimination or otherwise

prove discrimination.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it

is the decision of the Commission to AFFIRM the final decision of the

agency which found that the complainant was not discriminated against

when she was scheduled for a second fitness for duty examination in

September 1996.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 6, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.