Essie J. Baker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.

Equal Employment Opportunity CommissionFeb 2, 2000
01975776 (E.E.O.C. Feb. 2, 2000)

01975776

02-02-2000

Essie J. Baker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atl. Region), Agency.


Essie J. Baker v. United States Postal Service

01975776

February 2, 2000

Essie J. Baker, )

Complainant, )

) Appeal No. 01975776

v. ) Agency No. 2-C-1919-92

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid-Atl. Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her Equal Employment Opportunity (EEO) 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>

Complainant alleges that she was discriminated against on the bases of sex

(female), physical disability (lumbar and cervical strain to the upper

and lower back) and in reprisal for prior EEO activity when on March 23,

1992, and continuously thereafter, she has been denied the opportunity

to perform as an Acting Supervisor. The Commission accepts the appeal

in accordance with EEOC Order No. 960.001. For the following reasons,

we affirm the FAD as clarified herein.

The record reveals that during the relevant time, complainant was

employed as a Letter Carrier at the agency's Custom House Station in

Washington, DC. Believing she was discriminated against as referenced

above, complainant sought EEO counseling and subsequently filed a

complaint which was accepted for processing on November 2, 1992. At the

conclusion of the investigation, complainant was granted thirty days to

request a hearing before an EEOC Administrative Judge. Complainant failed

to request a hearing within the thirty day time period, and the agency

issued a final decision finding no discrimination.

Complainant appealed to this Commission, and in Baker v. United

States Postal Service, EEOC Appeal No. 01955444 (November 22,

1995), we remanded the complaint for the development of a complete,

factual record. Specifically, the agency was ordered to conduct a

supplemental investigation to determine: (1) the duties complainant

was performing as of March 23, 1992; and (2) the duties, including

the physical requirements, of the Acting Supervisor position.<2>

The supplemental investigation revealed that as of March 23, 1992,

complainant's duties included assisting customers on the phone and in

person; carrier mark up mail; casing mail; and sometimes delivering mail

to apartment buildings. A Letter Carrier and a Custodian who worked with

complainant at the facility in 1992 testified that the supervisory duties

included counting mail but not spreading it; supervision of employees

performing office duties; and one to two times per week, supervision of

carriers delivering mail. Such supervision, which could take up to one

hour per carrier, required both riding around observing the carriers

and/or walking with them.

On remand, the FAD concluded that complainant failed to establish a

prima facie case of sex discrimination because she presented no evidence

that similarly situated males were treated differently under similar

circumstances. The FAD also concluded that complainant failed to prove a

prima facie case of retaliation because the record is devoid of evidence

that the alleged Responsible Management Official (RMO) was aware of her

prior EEO activity. Finally, the FAD found that complainant did not

establish a prima facie case of disability discrimination because she

failed to present evidence that her impairment substantially limited one

or more of her major life activities or that she was regarded as such by

the agency. It is from this decision complainant now appeals. Complainant

did not submit a statement in support of her appeal. The agency requests

that we affirm its FAD.

Discrimination under Title VII

Based on the standards set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1973) and Hochstadt v. Worcester 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), we agree

with the agency that complainant failed to establish a prima facie case

of sex discrimination. Two of the named comparative, male employees

were promoted to supervisory positions in November 1991, and a third,

male comparative employee returned to his non-supervisory position prior

to February 7, 1992. Thus, these employees were not similarly situated

in time to complainant, and the record is devoid of evidence establishing

that as of March 23, 1992, and thereafter, complainant was treated less

favorably than similarly situated male employees.

We disagree with the agency that complainant failed to prove a prima

facie case of retaliation. Contrary to the FAD, the record establishes

that the RMO became aware of complainant's prior EEO activity before

March 23, 1992. Furthermore, complainant has presented evidence from two

co-workers, who testified that, contrary to the agency's representations,

the duties of Acting Supervisor at the facility did not actually

require lifting and prolonged standing, such that complainant could

adequately perform the duties in spite of her medical restrictions.

Since complainant had filed two previous complaints regarding this

same issue, including one approximately five months earlier, we find

that complainant established a sufficient causal connection between the

denial of her request to perform as an Acting Supervisor and her previous

EEO activity. Accordingly, we find that complainant established a prima

facie case of retaliation.

However, we find that the agency articulated a legitimate,

nondiscriminatory reason for not selecting complainant to perform as

an Acting Supervisor, namely that her medical restrictions prevented

her from assuming all the duties of the position. Based on a complete

review of the evidence, we find that complainant failed to present

evidence that more likely than not, the agency's explanation was a

pretext for retaliation. In reaching this conclusion, we note that the

facility's Area Manager testified that an Acting Supervisor is required

to perform duties which require lifting, prolonged standing and prolonged

walking. The medical evidence in the record specifically states that

the complainant is to avoid lifting, bending and prolonged standing

and walking. Furthermore, review of the Position Description reveals

that as an Acting Supervisor, complainant would be responsible for, inter

alia, the distribution and dispatch of mail and other mail handling jobs.

Accordingly, we find that in the capacity of Acting Supervisor, although

due to the custom at complainant's specific facility complainant might not

have to regularly engage in lifting and bending or even prolonged standing

or walking, complainant would be ultimately responsible for such duties.

Moreover, complainant's witnesses testified that the position does require

walking around supervising Letter Carriers as they deliver mail, which

depending on the number of carriers, could involve prolonged ambulation.

Since complainant has not presented sufficient evidence to prove that her

medical restrictions did not interfere in any capacity with her ability

to sufficiently perform all the duties required of an Acting Supervisor,

we find that she has failed to prove that agency's reasons for denying

her the opportunity at issue were a pretext for retaliation.

Discrimination under the Rehabilitation Act

The burdens of proof required in a disparate treatment claim brought

pursuant to the Rehabilitation Act are modeled after those used in Title

VII law.<3> Prewitt v. United States Postal Service, 662 F.2d 292 (5th

Cir. 1981). In order to establish a prima facie case of disability

discrimination, complainant must show that: (1) she is a qualified

individual with a disability; (2) she was treated differently from

individuals not in her protected group; and (3) the circumstances give

rise to the inference that the difference in treatment was based on

her disability. Loniello v. Department of the Air Force, EEOC Appeal

No. 01951539 (September 19, 1996).

We agree with the agency that complainant failed to establish a prima

facie case of disability discrimination because complainant failed to show

that she had a physical or mental impairment which substantially limited

one or more major life activities. In reaching this conclusion, we note

that the only medical evidence in the record states that until her next

appointment on April 14, 1992, complainant is to avoid bending, stooping,

heavy lifting, prolonged standing or walking and requires a chair with

back support. There is no evidence establishing either the degree of

severity or permanence of complainant's impairment or that the agency

regarded her as being substantially limited in a major life activity.

See Marshall v. Department of the Navy, EEOC Request No. 05950004 (June

2, 1995). Accordingly, we find that complainant has failed to establish

that she has a disability within the meaning of the Rehabilitation Act.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD as

clarified.

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:

February 2, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

________________________

Equal Employment Assistant

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 supplemental investigation was to include an evaluation by a

vocational rehabilitation professional. However, the FAD indicated

that it is not an agency practice to hire such professionals. Rather,

it is the United States Department of Labor who hires such professionals

to evaluate job descriptions for employees returning to duty status.

The FAD indicated that complainant was already in duty status. We find

that complainant was not prejudiced by the agency's inability to hire

such professional to perform an evaluation.

3 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.