Denise A. Bryant, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionNov 17, 2009
0120073820 (E.E.O.C. Nov. 17, 2009)

0120073820

11-17-2009

Denise A. Bryant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.


Denise A. Bryant,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area),

Agency.

Appeal No. 0120073820

Agency No. 1C191000607

DECISION

On September 10, 2007, complainant filed an appeal from the August

27, 2007 final agency decision (FAD) concerning her equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

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

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Mail Processing Clerk at the agency's Plant and Distribution

Center in Philadelphia, Pennsylvania. Complainant was hired by the

agency in December 1990 and was diagnosed in 1992 with brain cancer.

Complainant stated that she was out for six months and when she returned,

she was placed on light duty. Complainant asserts that her cancer is

currently in remission. Subsequently, the agency moved to a new facility

which had fewer light duty assignments. In June 2006, complainant was

sent home when the agency could not provide her a light duty assignment.

On November 15, 2006, complainant submitted a request for temporary light

duty. On March 29, 2007, the agency's District Reasonable Accommodation

Committee (DRAC) held a hearing and requested that complainant submit

updated medical documentation to enable the committee to make a decision

regarding an accommodation. Complainant failed to submit the requested

documentation. On March 6, 2007, complainant filed an EEO complaint

alleging that she was discriminated against on the basis of disability

(brain cancer) when, in June 2006, and ongoing, she was denied light

duty work.

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). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).

Initially, the FAD found that complainant failed to establish a prima

facie case of disability discrimination. The FAD found that complainant

had offered no evidence that her disability substantially limited a major

life activity. The FAD found that complainant's medical restrictions

were only related to her current position and those restrictions

did not rule out complainant's ability to work in another position.

Further, the FAD found that complainant had not offered any evidence of

similarly situated employees outside her protected group who were treated

differently. Finally, the FAD found that complainant had presented no

evidence establishing a causal relationship between her disability and

the alleged discrimination. Thus, the FAD found that complainant failed

to establish a prima facie case of disability discrimination.

As to complainant's denial of a reasonable accommodation claim, the

FAD found that complainant was not considered an "otherwise qualified"

person under the Rehabilitation Act as she was not able to perform the

essential functions of the job with or without a reasonable accommodation.

Additionally, the FAD found that the agency's medical doctor did not

clear complainant to return to work. The FAD therefore found that the

agency had not denied complainant a reasonable accommodation.

The FAD then assumed arguendo that complainant had established a prima

facie case of discrimination and found that the agency had articulated

legitimate, nondiscriminatory reasons for its actions. The FAD found that

that the Light-Duty Coordinator (LDC) stated that complainant's request

for light duty was denied because the agency's medical officer declared

that she was "not fit for work." The FAD found that complainant failed to

submit any evidence into the record that the reasons articulated by the

agency were not the true reasons for their actions or that the agency

harbored any discriminatory animus. The FAD therefore concluded that

complainant failed to prove that she was subjected to discrimination

as alleged.

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").

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must 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.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

In the instant case, assuming complainant is disabled, and that she

could otherwise establish a prima facie case of discrimination on the

alleged basis, the agency has articulated a legitimate, nondiscriminatory

explanation for its actions. LDC states that complainant's medical

restrictions render her unable to perform the duties of her job.

Report of Investigation (ROI), LDC's Aff. at 2. The record reflects

that those restrictions include:

(1) lifting or carrying up to five pounds for up to four hours at one

time;

(2) lifting or carrying 5-10 lbs for up to two hours at one time;

(3) no lifting over 20 pounds;

(4) pushing or pulling up to 20 pounds for two hours at one time;

(5) sitting for four hours at one time;

(6) standing and bending for one hour at a time;

(7) no kneeling or climbing;

(8) grasping or sorting mail for four hours at a time and reaching above

shoulders for one hour at a time. ROI, Ex. 4.

Additionally, LDC asserts that given complainant's medical restrictions

and that complainant was not cleared to work by the agency's medical

doctor, there was no work available under the agency's light duty policy.

ROI, LDC's Aff. at 3. Further, the record reveals that at complainant's

reasonable accommodation hearing, the DRAC requested that complainant

submit updated medical documentation to assist them in making a decision

regarding an accommodation. ROI, Ex. 9. The record indicates that

complainant failed to submit the requested updated documentation.

Complainant must now establish, by a preponderance of the evidence,

that the agency's articulated legitimate, nondiscriminatory reasons were

pretext for discrimination. Complainant asserts that her cancer is in

remission and she had been on light duty previously. See Formal Complaint

at 1. Further, complainant avers that employees with job-related injuries

are able to receive light duty assignments, while non job-related injured

employees are sent home. Id. We find that complainant has presented

no evidence establishing that the agency's reasons are pretextual.

We note that complainant failed to provide an affidavit in support

of her complaint despite a request by the EEO Investigator. In any

event, we find that the record is devoid of any persuasive evidence that

discrimination was a factor in the agency's decision to deny complainant

light duty work. At all times, the ultimate burden of persuasion remains

with complainant to demonstrate by a preponderance of the evidence that

the agency's reasons were not the real reasons, and that the agency acted

on the basis of discriminatory animus. Complainant failed to carry this

burden.

Denial of Reasonable Accommodation

To the extent that complainant is claiming a denial of a reasonable

accommodation, we note that 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.

See 29 C.F.R. �� 1630.2(o) and (p). Assuming without deciding (for

the purposes of this decision) that complainant is an individual

with a disability and a qualified individual with a disability, the

Commission concludes nonetheless that complainant has failed to show

that the agency denied her request for a reasonable accommodation.

The record reveals that complainant failed to present the agency with

the requested updated medical documentation related to her request for

an accommodation. The agency's Human Relations Generalist (HR1) asserts

that the DRAC requested updated medical documentation and had not made

a decision because complainant had not provided the updated medical

documentation. ROI, HR1's Aff. at 1. Further, the record reveals that

at the DRAC hearing complainant was advised that she could also use the

bidding process or the agency's eReassign process to find suitable work.

ROI, Ex. 9. In light of complainant's failure to submit the requested

information, we find that no showing has been made that the agency failed

to accommodate complainant's disability.

CONCLUSION

We AFFIRM the agency's final decision finding no discrimination because

a preponderance of the evidence of record does not establish that

discrimination existed as alleged.

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

November 17, 2009__

Date

2

0120073820

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073820