Frances E. Williams, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 20, 2009
0120090602 (E.E.O.C. May. 20, 2009)

0120090602

05-20-2009

Frances E. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Frances E. Williams,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090602

Agency No. 1J-607-0022-07

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 16, 2008 final decision concerning

her equal employment opportunity (EEO) complaint claiming employment

discrimination in violation of Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

During the period at issue, complainant was employed as a Full Time Mail

Handler at the agency's Cardiss Collins Processing and Distribution Center

(P&DC) in Chicago, Illinois.

On August 23, 2007, complainant filed the instant formal complaint.

Therein, complainant alleged that she was subjected to harassment

and a hostile work environment on the basis of disability (DVT,

Hemorrhage Hematoma, Pulmonary Embolism, Rotator Cuff Bursae, Right

Shoulder Tendonitis, Right Elbow Lymphoma, Matic Torricellis, Massive

Heart Attack and Cataracts) when:

she was sent home on March 27, 2007 and denied reasonable accommodations

when her request for FMLA leave was denied. Additionally, complainant

contended that on unspecified dates, she was worked outside her

restrictions; she was issued an Options Letter and not allowed to

communicate with the Lead Supervisor; she was informed daily that

she could not be sent home; she was assigned to a unit where she was

isolated from others and no one was allowed to talk to her; and she was

not accommodated with a chair.1

After the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

On November 4, 2008, the AJ issued an order, dismissing the formal

complaint from the hearing process. In his Order, the AJ concluded that

because complainant failed to show cause for her failure to adequately

respond to the agency's discovery request and her failure to cooperate

with discovery, file timely pre-hearing submissions and follow the

AJ's orders, he remanded the case to the agency for issuance of a final

decision. Therefore, the agency issued the instant final decision on

December 16, 2008.

In its December 16, 2008 final decision, the agency found no

discrimination. Specifically, the agency found that complainant

did not establish a prima facie case of disability discrimination

because she failed to show that she was substantially limited in a

major life activity.2 The agency concluded that complainant failed to

show that she was a qualified individual with a disability as defined

by the Rehabilitation Act. The agency further found that assuming,

arguendo, that complainant established a prima facie case of disability

discrimination, management articulated legitimate, nondiscriminatory

reasons for its actions which complainant failed to show were a pretext.

Regarding the harassment claim, the agency found that the evidence in

the record did not establish that complainant was subjected to harassment

based on prior protected activity. Specifically, the agency found that

the alleged harassment was insufficiently severe or pervasive so as to

create a hostile work environment.

Complainant's immediate supervisor (S1) stated that he was aware of

complainant's work restrictions, but that he was not aware of her

specific medical conditions. S1 stated that complainant "would provide

me a copy of her condition and restrictions that I would forward to

the FMLA coordinator." S1 further stated that complainant "did not

request reasonable accommodation from me." S1 stated that on March 27,

2007, the Manager, Distribution Operations (MDO) brought complainant to

him and informed him "there was no work for the complainant to do per

her restrictions. She needs to go home, see her doctor and bring back

an updated medical statement so that we (the Postal Service) can find

work that would be comparable to your restrictions." S1 stated that

complainant was informed that "she could use any leave that she wants

to use, but to call in the next day so the Postal Service would have

some type of idea of how long she would be off work."

S1 stated that during the relevant time, he had no knowledge of any

reasonable accommodation "approved or disapproved by or for [complainant].

I was not present if or when the request was made." S1 stated that in

regard to complainant's claim that she was isolated from others and no

one was allowed to talk to her, the unit that complainant "was in is

across from the machine that she was prepping mail for. By me working

on the first floor and the complainant working on the third floor,

I am unaware if anyone told her that she couldn't talk to anyone.

There was at one time more [employees] than the complainant working in

that area." S1 stated that in regard to complainant's claim that she

was not accommodated with a chair, he saw complainant "working in the

unit on the third floor, she had a chair. When this accommodation was

taken away from her I have no knowledge of."

MDO stated that during the relevant time, she did not subject complainant

to harassment. MDO further stated that she became aware of complainant's

restrictions in February 2007 when she became the District's Coordinator

for Light and Limited Duty. MDO stated that complainant provided medical

documentation to her and S1 every 30 days. MDO stated that on March 27,

2007, she sent complainant home as a result of the restrictions submitted

by her physician. Specifically, MDO stated that complainant's duty stat

report reflected that complainant was "restricted to Zero lifting and

there was no work at all that had zero lifting restrictions." MDO stated

that complainant was sent home off the clock "until she could obtain

an evaluation stating she could lift to some degree so that we could

provide her with productive work. With no lifting allowed at all,

there was not work for the complainant within those restrictions."

MDO stated that complainant did not request reasonable accommodation,

but that MDO nevertheless made a request for reasonable accommodation

because complainant "could not perform the essential function of her

job assignment." MDO stated in regard to complainant's claim that she

worked outside of her restrictions, she was not aware of complainant

"ever working outside of her medical restrictions. I have observed

[Complainant] working her light duty assignment on many occasions and I

have never seen her working outside of her restrictions." MDO stated that

complainant's restrictions were as follows: no pushing/pulling/carrying

over 15 pounds, no lifting over 15 pounds, no reaching above head and

must ambulate every 90 minutes. MDO stated that complainant's light

duty assignment was "prepping Flat mail pieces into an ERGO cart while

seated. The Flat mail pieces weigh less than 15 lbs." MDO stated that

complainant was later assigned to the Nixie Unit "because we no longer

needed a prepping operation. In the nixie operation [complainant]

is repairing letter mail and flat mail pieces."

Further, MDO stated complainant's Options Letter dated July 24, 2007

was mailed to her address of record on July 25, 2007. Specifically,

MDO stated she requested that complainant meet with the District

Reasonable Accommodation Committee (DRAC) in June 2007. MDO stated

that following the June 20, 2007 meeting, DRAC issued a decision dated

July 24, 2007. MDO stated that complainant's request for reasonable

accommodation was denied "because the committee was not able to find a

reasonable accommodation within the complainant medical restrictions."

MDO stated that complainant was given the following four options:

"1. You may apply for reassignment, if you qualify and (reassignments

are based on availability) 2. You may apply for disability retirement,

if you qualify. 3. You may apply for regular retirement, if you qualify;

and 4. You may voluntarily terminate your position with the Postal

Service."

With respect to complainant's claim that she was told she could not speak

to her Lead Supervisor, MDO stated "I do not recall such an incident,

but I do recall having a conversation with [S1] stating that he needed

to go ahead to place the complainant off the clock because we could not

provide her with work within her restrictions; that is, work that had zero

lifting." Regarding complainant's claim that she was assigned to a unit

where she was isolated from others and no one was allowed to talk to her,

MDO stated "we do not have any operations were employees are isolated.

I have no knowledge of other employees not being allowed to talk to her."

Regarding complainant's claim that she was not accommodated with a chair,

MDO stated complainant has been accommodated with a chair "for the entire

time that she has been on light duty. The Light Duty Management Report

indicates that she has been working in a Light Duty status since 1992."

Another Manager, Distribution Operations (MDO2) stated that she was

assigned to the Cardiss Collins P&DC at the time of the incidents cited

in complainant's complaint. MDO2 stated that she was aware complainant

had work limitations "as she was a Light Duty employee; however,

I have no specific knowledge of the complainant's medical condition."

MDO2 stated that during the relevant time, the Cardiss Collins P&DC "was

undergoing automation enhancements which eliminated some of the manual

functions at the facility and subsequently impacted employees who had

been assigned manual tasks as the result of their work limitations."

MDO2 stated that she managed the area and prepping operation where

complainant was assigned. MDO2 stated that there was a significant

initiative "to review the work restrictions and job assignments for all

Light Duty employees in the facility. The purpose of this initiative

was to ensure the Light Duty employees were performing productive work;

they were working within their limitations; and all medical documentation

was up to date and supported their Light Duty assignments." MDO2 stated

that the initiative was also implemented in an effort to reduce the

light duty work force and allow them the opportunity to return to full

duty without restrictions. MDO2 stated that complainant "was not the

only employee whose medical documents and work assignments were being

closely scrutinized; it was every Light Duty employee."

With respect to complainant's claim that she was subjected to harassment,

MDO2 stated complainant "did complaint to me about the alleged harassment

(in general), she believed was occurring through this process; however,

other than general conversations, no formal actions were merited."

On appeal, complainant contends that her rights "have been violated and

are still being violated to this day." Complainant states that she made

an offer to the agency attorney but "he refused and stated he could he[lp]

me with my workman compensation claim and me sure I got it processed

it still has not been processed." Furthermore, complainant states

"I am requesting that no sanction be placed on me because I explain to

[a named agency attorney] that my husband had developed cancer."

Disparate Treatment

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

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. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The agency articulated legitimate, nondiscriminatory reasons for its

actions. Complainant has not demonstrated that these reasons were a

pretext for discrimination.

Harassment

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 severe or pervasive. Wibstad

v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,

1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). It is also well-settled that harassment based on an

individual's prior EEO activity is actionable. Roberts v. Department

of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).

A single incident or group of isolated incidents will generally not

be regarded as discriminatory harassment unless the conduct is severe.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether

the harassment is sufficiently severe to trigger a violation of Title

VII must be determined by looking at all of the circumstances, including

the frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement

Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002

(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems,

Inc., EEOC Notice No. 915.002 (March 8, 1994).

In the instant case, we find that the incidents complained of, even if

true, do not rise to the level of a hostile work environment.

As an initial matter, we find that complainant, on appeal, has not

provided any persuasive argument regarding the propriety of the agency's

finding of no discrimination. The Commission determines that the agency

conducted a thorough investigation.

Therefore, after a review of the record in its entirety, including

consideration of all statements 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 (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

May 20, 2009

__________________

Date

1 The record reflects that when complainant submitted a PS Form 2564-C

wherein she withdrew the claim of not being accommodated with a chair.

The record further reflects that in her affidavit, complainant clarified

that she was not forced to work outside her restrictions, but that she

was only told to be careful.

2 The Commission presumes for purposes of analysis only, and without so

finding, that complainant is an individual with a disability.

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0120090602

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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