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.