01976371
04-25-2000
Ernest E. Haygood, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ernest E. Haygood v. United States Postal Service
01976371
April 25, 2000
Ernest E. Haygood, )
Complainant, )
) Appeal No. 01976371
v. ) Agency No. 1-B-145-0004-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION
Complainant timely filed an appeal with the Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. �2000e et seq.; the Age Discrimination in Employment Act of
1967, 29 U.S.C. �621 et seq.; and Section 501 of the Rehabilitation
Act of 1973, 29 U.S.C. �791.<1> The appeal is accepted in accordance
with EEOC Order No. 960, as amended. See 64 Fed. Reg. 37,644, 37,659
(to be codified and hereinafter referred to as 29 C.F.R. �1614.402(a)).
The issues presented in this appeal are:
whether the agency harassed complainant, or otherwise treated him
differently than other employees, because of his race (Black), gender,
physical disability (degenerative effects of back injury), and, reprisal
by sending him home from work on October 14, and 15, 1996; and
whether the agency assigned complainant work on October 14, and 15, 1996,
that was beyond his medical restrictions, thereby failing to reasonably
accommodate his disability.
The agency initially employed complainant as a mail handler. He injured
his back in 1975, and the degenerative effects of his injury caused
him to retire on disability in 1981. In 1982, however pursuant to a
program authorized by the Federal Employees Compensation Act (FECA),
he returned to work as a distribution clerk, in a modified distribution
clerk position. Between 1982 and 1996, the agency accommodated his
back condition by providing him with a distribution desk that had four
fewer rows of shelves than a regular desk, so that he would not have
to reach above his shoulder, and with a chair that allowed him to keep
his feet flat on the ground. The agency also accommodated complainant
by periodically adjusting his work schedule and duties, in compliance
with the recommendations of complainant's physicians and instructions
from the Office of Workers Compensation Programs (OWCP).
According to the injury compensation specialist who monitored
complainant's OWCP claims, the agency offered two kinds of jobs
to disabled employees. Employees with temporary disabilities were
offered limited duty assignments, whereas employees whose disabilities
were permanent were offered rehabilitation jobs within their medical
restrictions. Investigative Report (IR) 21.
On November 19, 1995, complainant accepted a limited duty assignment in
the revenue protection area. His responsibilities included examining
mail for revenue protection, distributing mail, and performing any other
duties within his medical restrictions that his supervisor may designate.
Those restrictions included lifting more than ten pounds, pushing,
bending, squatting, climbing, pulling and twisting. The notice of
assignment also indicated that someone would bring and dispatch mail for
complainant, and that complainant would be assigned a three-hour tour.
Investigative Report (IR) 54.
Shortly thereafter, complainant's physician, in a handwritten note
dated December 11, 1995, indicated that complainant's tour of duty
should be reduced to two hours per day, without any change in his other
restrictions. IR 32. According to the injury compensation specialist,
OWCP referred complainant for a second medical opinion on May 14,
1996, because of his apparent inability to work a three-hour shift.
According to this second medical opinion, the modified restrictions were
as follows: intermittent sitting, standing, and walking; intermittent
lifting between ten and fifteen pounds, limited reaching above the head,
and limited repeated bending. A work capacity evaluation worksheet
accompanying the opinion, dated June 26, 1996, indicates that complainant
could work a four-hour tour. IR 22. The agency received the opinion
on August 5, 1996.
On September 30, 1996, the agency offered complainant an amended
rehabilitation job, based on that second medical opinion. IR 22. The
duties of the modified position would remain the same as those in his
previous limited duty assignment, but would have to be accomplished within
the restrictions identified in the opinion. Complainant was assigned a
four-hour tour of duty, in accordance with the second medical opinion. IR
26, 55.
The record contains a letter from complainant's physician, dated October
3, 1996, which states that complainant should only work between two and
three hours per day, and should not lift over ten pounds, bend, squat,
climb, kneel, or reach above the shoulder. IR 34.
In accordance with the agency's standard practice, complainant's
supervisor was notified of the restriction by written memorandum dated
October 1, 1996. The memorandum indicated that complainant was given
an amended rehabilitation job offer, and that his work restrictions
included: intermittent sitting, standing, and walking; intermittent
lifting between ten and fifteen pounds; limited reaching above the head;
and limited repetitive bending. IR 57.
On October 3, 1996, complainant accepted the rehabilitation job offer,
but noted that he was doing so against the recommendation of his doctor.
IR 56. On October 11, however, complainant filed a claim with OWCP,
claiming compensation for recurrence of his disability. He reported that
he was in constant pain, that he could not sit down for long periods of
time, and that he received medical treatment on October 8th. IR 58.
Complainant returned to work on October 14, 1996. He was assigned to
work in revenue protection. He told the distribution operations manager
that he could not work in revenue protection because the work there was
outside of his medical restrictions. IR 12. The manager then told
complainant to work the primary sorting area. Complainant informed
the manager that he could not work in the primary sorting area either,
because he could not sit on the high stools without hurting his back,
and because processing mail in the primary sorting area would require
him to reach over his head frequently. At that point, the manager told
him to go home. IR 13, 17. The manager stated that he believed that
complainant had accepted the rehabilitation job in the revenue protection
area, and consequently, that he believed the work was within complainant's
medical restrictions. He also stated that complainant had been working
in a modified job for several years in revenue protection, and that
complainant had a specially designed work area that no one else used.
IR 16. Finally, the manager testified that several female employees who
could not work within their medical restrictions were also sent home,
and that it was his normal practice to send home employees who claimed
that they could not perform their assigned duties. IR 17.
The following day, October 15, 1996, complainant reported to work in
the revenue protection area, but told a second distribution operations
manager that he was not able to work at his modified distribution clerk
position because it was outside of his medical restrictions. The second
manager stated that he was not aware of any changes that would inhibit
his ability to perform the duties of his job as it was structured.
As did the first manager, the second manager told complainant to go to
the primary sorting area, which he also believed was within complainant's
medical restrictions. When complainant responded that he could not work
the primary sorting area either, the second manager also sent him home.
IR 17, 19.
The following day, the facility manager issued a memorandum to the two
managers, indicating that complainant would be returning to work that
night, and that his medical restrictions had not changed. IR 60.
Harassment
The harassment of an employee that would not occur but for the
employee's race, color, sex, national origin, age, disability, or
religion is unlawful if it is sufficiently patterned or pervasive. Frye
v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
deLange v. Department of State, EEOC Request No. 05940405 (March 3, 1995).
In this case, complainant contends that being sent home on two occasions
constitutes harassment. The Commission has held, however, that unless
the conduct complained of is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Backo v. United States Postal Service, EEOC Request No. 05960227 (June
10, 1996). Here, the two incidents at issue appear to be nothing more
than a normal application of a standard agency policy. Complainant has
not presented any evidence tending to show that being sent home due
to inability or unwillingness to do one's job rises to the level of
discriminatory harassment. We now turn to whether complainant was
treated differently because of his race, age, or previous EEO activity.
Disparate Treatment and Reprisal
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination or reprisal. Furnco
Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995). Although this test developed in the context of Title VII,
it also applies to claims brought under the ADEA, except that complainant
must prove that his age was the determining factor in the two managers'
decisions to send him home. Johnson v. United States Postal Service,
EEOC Request No. 05910560 (September 17, 1991); Forney v. Department of
Agriculture, EEOC Request No. 05900988 (October 30, 1990).
Where the agency has established legitimate, nondiscriminatory reasons
for its conduct, the trier of fact may dispense with the prima facie
inquiry and proceed to the ultimate stage of the analysis, i.e.,
whether the complainant has proven by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). In this case,
the two managers sent complainant home because complainant informed
them that he could not work in either the revenue protection area or
the primary sorting area because the assignments were outside of his
medical restrictions. Accordingly, the Commission will bypass the prima
facie inquiry, and will focus on whether the agency's explanation for
sending complainant home on October 14 and 15, 1996, is a pretext for
discrimination.
Complainant stated that a white male employee was told to work for three
hours sometime in August 1996. He indicated that this employee told
management that his doctor stated that he could work for only two hours,
and that management allowed him to work for two hours at another facility.
IT 13. He also gave the names of four female employees who he alleged
were treated differently. IR 14. The first manager testified that three
of those employees were sent home after they told him that they could
not perform the functions of their modified jobs. IR 17. Both managers
believed that the jobs that they asked complainant to perform were within
complainant's medical restrictions, and that they based their belief on
the instructions that they received from the agency's medical unit. IR 57.
While complainant may assert that he was treated unfairly, he has not
presented any documents or testimony, other than his own assertions,
which contradicts the managers' testimony or otherwise undermines
their credibility as witnesses. We therefore find that complainant was
neither treated differently because of his race or age, nor retaliated
against because of previous EEO activity when he was sent home from work
on October 14 and 15, 1996. We now address his claim that the agency
failed to reasonably accommodate his disability.
Reasonable Accommodation
To bring a claim of disability discrimination, petitioner must
first establish that she has a disability within the meaning of the
Rehabilitation Act. Murphy v. United Parcel Service, Inc., 527 U.S. 516
(1999); Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139,
2141-42 (1999); Albertsons, Inc., v. Kirkingburg, 527 U.S. 555, 119
S.Ct. 2162, 2167-68 (1999). An individual with a disability is one who
has, has a record of, or is regarded as having a physical impairment
that substantially limits one or more of her major life activities. 29
C.F.R. � 1630.2(g).<2> In this case, complainant has been experiencing
the degenerative effects of a spinal injury since the 1970's. He had been
under severe medical restrictions since he was rehired under the FECA
program in 1982. Limited duty job offers and other medical documentation
from 1982, 1985, 1992, and 1995, as well as the rehabilitation job offer
in September 1996, establish that complainant had never been able to
work longer than four hours per day, lift more than fifteen pounds, or
reach above his shoulder during that entire 14-year time frame. Thus, his
condition substantially impaired his ability to engage in the major life
activities of lifting and reaching. The documentation that complainant
presents is more than sufficient to establish that he has a disability
as defined by the Rehabilitation Act and its interpretive regulations.
In addition to establishing that he has a disability, complainant must
also show that he is qualified. See Cleveland v. Policy Management
Systems Corp., 526 U.S. 795 (1999). A qualified individual with a
disability is one who can, with or without reasonable accommodation,
perform the essential functions of the position in question. 29
C.F.R. �1630.2(m). Complainant returned to work in 1982, after
retiring on disability the previous year. He has been able to perform
the essential functions of the distribution clerk position, with
appropriate modifications to his work station. IR 49. We therefore
find that complainant is a qualified individual with a disability.
The only question remaining is whether the agency reasonably accommodated
Complainant.
An agency is required to make reasonable accommodations to the known
physical and mental limitations of qualified individuals with disabilities
unless it can demonstrate that doing so would impose an undue hardship
upon its operations. 29 C.F.R. �1630.9(a). Reasonable accommodation
may include job restructuring, reassignment to a vacant position, or
modified work schedules. 29 C.F.R. �1630.2(o). Factors to consider in
determining whether any of these accommodations would impose an undue
hardship include the size and budget of the program, the type of operation
and the nature and cost of the accommodation. 29 C.F.R. �1630.2(p).
In essence, complainant argues that the agency forced him to work a
four-hour tour, despite the fact that his doctors recommended that he only
work a three-hour tour. In November of 1995, complainant was offered a
three-hour tour, which he accepted, in accordance with recommendations
from his own physicians. He was referred for a second medical examination
in May 1996, pursuant to which he was given medical clearance to work
a four-hour tour. He began working the four-hour tour in October 1996,
only after he was given clearance to do so by the OWCP. IR 22, 28, 32,
34, 55 . Thus, the decision to increase complainant's tour to four
hours did not exceed his medical restrictions, and therefore does not
constitute a failure on the part of the agency to provide complainant
with a reasonable accommodation.
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 evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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 (P1199)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
___04-25-00_______ ______________________________
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
1On 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.
2The 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.