0120072796
12-07-2009
Felecia Brooks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Felecia Brooks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120072796
Hearing No. 410-2006-00316X
Agency No. 4H300011506
DECISION
On May 16, 2007, complainant filed an appeal from the agency's April 19,
2007 final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons,
the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant
was employed as a Part Time Flexible Distribution Window Clerk at
the agency's Kennesaw Main Post Office and Carrier Annex facilities in
Kennesaw, Georgia. In March 2005, complainant was notified that she was
being separated from her position with the agency based upon the agency's
determination that she was unable to perform the essential functions of
her job. Complainant challenged the agency's notice of separation and by
Pre-Arbitration Settlement, dated January 10, 2006, the agency agreed to
rescind the notice of separation and provide complainant with work duties
within her medical restrictions. Complainant and the agency agreed
that complainant would return to work no later than February 3, 2006.
Complainant reported for work on February 6 and 7, 2006. On February 8,
2006, complainant requested unscheduled leave for several days, returned
to work on February 21, 2006, then again requested leave on February
22, 2006. Complainant did not return to work thereafter and ultimately,
notified the agency that she had applied for disability retirement in
March 2006.
On June 17, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American) and
disability (Chronic Fatigue Syndrome) when:
On February 2 and February 22, 2006, complainant was denied
reasonable accommodations when she was assigned duties that were
not within her medical restrictions, and she was not provided
with an acceptable limited duty job offer.
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). Complainant requested a
hearing but the AJ ultimately denied the hearing request on the grounds
that complainant waived her right to request a hearing.1 The AJ remanded
the complaint to the agency, and the agency issued a final decision
pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found that complainant's restrictions
were the following:
(1) Intermittent light lifting up to 10 pounds;
(2) Intermittent lifting, pulling, pushing, reaching above
shoulders, use of fingers;
(3) Must alternate sitting, standing and walking;
(4) Minimal personal contact;
(5) Must not work more than four hours per day, with a
gradual increase toward eight hours per day; and
(6) Morning work is preferred, as fatigue worsens during
the afternoon.
The agency found that complainant was an individual with a disability
within the meaning of Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq. because she was substantially limited
in one or more major life activity.
The agency further found that in February 2006, upon her return to work
after more than one year away from her position, complainant was assigned
to duties that included processing "return to sender" letters, flats,
parcel and answering the telephone at the Kennesaw Carrier Annex facility.
The agency found that complainant was permitted to sit, stand and walk
at will while performing these duties. The agency did not find that
the assigned duties violated complainant's medical restrictions.
Also considered in the agency's decision was complainant's request that
she be assigned to the Box Section of the Main Post Office in Kennesaw,
where complainant previously worked.2 The agency found that the nature
of that work would have violated complainant's medical limitations in
that the work of that area of the post office was repetitive and the
position required greater contact with people which would create more
stress for complainant.3
The agency noted that complainant identified two employees, not in
her protected racial group, that she felt were treated preferentially.
Specifically, complainant identified employees A and B, who she believed
were also employees with disabilities, but because of their race, they
were offered light duty positions within their medial restrictions.
The agency noted that neither employee A or B were similarly situated
to complainant. Rather, the agency determined that employee A was
assigned to light duty responsibilities after she was injured at work,
while complainant's injuries were not work-related. The agency found
that employee B was not an employee with medical restrictions.
The agency concluded that complainant did not show that she was denied
work within her medical restrictions. The agency noted complainant was
offered a position that included job duties that accommodated her medical
restrictions and that complainant was not subjected to discrimination
because of her race or disability.
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").
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
We find that the AJ properly dismissed complainant's complaint from the
hearing process for the reasons set forth by the AJ. In the instant case,
we assume, without so finding, that complainant was an employee with a
disability as alleged in her complaint. We find that complainant was
permitted to sit, stand or walk around as needed during the performance
of the duties assigned to her at the Kennesaw Carrier Annex, upon her
return to work in February 2006. Significantly, the record shows that
complainant was not held to any production standards with these duties and
that complainant's supervisor explained that complainant could work the
hours she was able, rather than being assigned to a minimum or maximum
number of hours of work each day. We find that complainant has not
shown that the duties assigned to her violated the limitations outlined
by complainant's medical providers. We further find no evidence that
either employee A or employee B received preferential treatment under
the same or similar circumstances. Moreover, we find that complainant
has not shown that the agency's reasons for its action were a pretext
to mask race or disability discrimination.
Accordingly, the agency final decision is AFFIRMED.
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
December 7, 2009
__________________
Date
1 Neither complainant nor her representative appeared at the hearing
location (in Kennesaw, Georgia) on the date scheduled for the hearing of
complainant's complaint. Complainant notified the Administrative Judge
on the morning of the scheduled hearing that she and her representative
had been delayed in Memphis, Tennessee. The AJ found complainant's
notice of travel issues untimely, and also noted inconsistencies
in complainant's explanation for failing to appear and accordingly,
determined that complainant waived her right to a hearing.
2 Complainant expressed a desire to return to her former assignment
at the Kennesaw Main Post Office box section, noting that is where her
friends also worked.
3 On February 8, 2009, after complainant told her supervisor that she
believed the new duties violated her medical restrictions, complainant was
directed to report for a fitness for duty (FFD) examination and to forward
the relevant medical records for the examining physician's consideration.
The record shows that complainant did not forward her medical records
as requested and was not scheduled for a FFD examination prior to the
time she applied for disability retirement.
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0120072796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120072796