01991327
03-08-2002
Gloria Barnett v. United States Postal Service 01991327 03-08-02 . Gloria Barnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria Barnett v. United States Postal Service
01991327
03-08-02
.
Gloria Barnett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991327
Agency No. 1C-441-0171-97
DECISION
On December 2, 1998, Gloria Barnett (hereinafter referred to as
complainant) initiated a timely appeal to the Equal Employment
Opportunity Commission (Commission) with regard to her complaint of
discrimination in violation of � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted by this
Commission in accordance with 29 C.F.R. � 1614.405. Based upon a review
of the record, and for the reasons stated herein, it is the decision of
the Commission to REVERSE the final agency action.
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that she was discriminated against on the basis of her
disability (back injury) when she was denied higher level pay.
Complainant filed a formal EEO complaint in April 1997, raising the
above-referenced allegation of discrimination.<1> The agency accepted
complainant's complaint for processing, and conducted an investigation.
The agency then provided complainant with a copy of the investigative
report and notified her of her right to request an administrative
hearing within 30 days. Receiving no response from complainant, the
agency issued a final decision finding that complainant had not been
subjected to discrimination as alleged. It is from this decision that
complainant now appeals.
The complaint herein presents the issue of whether the agency subjected
complainant to disparate treatment on the basis of her disability.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an
analytical framework for proving employment discrimination in cases in
which disparate treatment is alleged. First, complainant must establish
a prima facie case by presenting enough evidence to raise an inference
of discrimination. McDonnell Douglas, supra, at 802. The agency
may rebut complainant's prima facie case by articulating legitimate,
nondiscriminatory reasons for its action, and if the agency does so,
complainant must show, by a preponderance of the evidence, that the
agency's reasons are a pretext for discrimination. Id.
A review of the record reveals that complainant, who was working as a
part time level 4 flexible mail processor, sustained a back injury on
the job in 1993. The record contains two workers' compensation forms
completed in June and October 1997 respectively, both of which show that
complainant was restricted to sitting for 6 hours, standing for 2 hours,
intermittent walking, and no bending, stooping, pushing or pulling.
In addition, complainant could lift no more than 10 pounds. On the
later form, complainant's physician stated that complainant had lower
back pain and sensory radiculopathy.
Complainant stated that, in the past, she received higher level pay when
assigned higher level work. Specifically, complainant indicated that,
as early as 1994, she received higher level pay when working in level 5
assignments in the office and �flats primary.� Complainant asserted that
the union contract provided for employees to receive higher level pay
when given higher level assignments. Complainant noted, however, that
in 1997, she was told that she could no longer receive higher level pay.
Complainant indicated that another employee (Comparative 1) continued
to receive higher level pay when she performed higher level work.
The Manager of Distribution Operations (MDO) averred that he was
told complainant was not entitled to level 5 pay because she had been
assigned such jobs to meet her medical restrictions. MDO acknowledged
that Comparative 1 did receive higher level pay, but stated that she had
been trained to work as a expeditor. MDO stated that it was the policy
of the plant that no one would receive higher level pay when assigned
to a job because of medical restrictions.
Under the Rehabilitation Act, a disabled individual is one who: 1. has an
impairment which substantially limits one or more major life activities;
2. has a record of such an impairment; or 3. is regarded as having
such an impairment. 29 C.F.R. �1630.2(g).<2> Major life activities
include caring for one's self, performing manual tasks, walking, seeing,
breathing, learning, and working. 29 C.F.R. �1630.2(i).
In the case at hand, the Commission finds that complainant was an
individual with a disability. Specifically, the record shows that
complainant had a back condition which restricted her to lifting no
more than 10 pounds. The agency asserted that complainant's back
condition was temporary in nature. The record, however, shows that
complainant sustained the back injury in 1993 and continued to have
medical restrictions in 1997. Thus, it is reasonable to conclude that
complainant's condition was in fact permanent. Finally, the Commission
notes that there is no evidence in the record, nor does the agency assert
that complainant was not a qualified individual with a disability.
The agency asserted that complainant failed to show that she was treated
differently than other similarly situated employees. The Commission
notes that, in order to establish a prima facie case, complainant must
only present evidence which, if unrebutted, would support an inference
that the agency's actions resulted from discrimination. See O'Connor
v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement
Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice
No. 915.002, n. 4 (September 18, 1996). Further, while the agency bases
its assertion on the fact that Comparative 1 was not on limited duty,
we find that such evidence would actually support complainant's prima
facie case.
As stated, MDO indicated that complainant did not receive higher level
pay because it was the policy of the plant that employees not receive
higher level pay when they are assigned to a job because of medical
restrictions.<3> While the agency characterized this policy as �neutral,�
the Commission disagrees. The agency conceded that Comparative 1 received
higher level pay as a result of performing higher level duties. To deny
complainant the appropriate level of pay solely because she was assigned
certain duties in order to address disability-related restrictions is
discriminatory. Thus, we find that the agency failed to articulate a
legitimate, nondiscriminatory reason for denying complainant higher
level pay. Accordingly, we find that complainant was subjected to
disability discrimination.
CONCLUSION
Based upon a review of the record herein, it is the decision of the
Commission to REVERSE the final agency decision.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall compensate complainant for all periods during which
she performed higher level duties within thirty (30) calendar days of
the date this decision becomes final. Specifically, the agency shall
pay complainant the difference between the pay she received and the
level of pay commensurate with the higher level work performed during
those periods, with interest, and provide other benefits she would
have received.
2. The agency shall reexamine its policy to ensure compliance with the
Rehabilitation Act.
3. The agency shall conduct 8 hours of training for the MDO addressing his
responsibility under equal employment opportunity law. The training shall
place special emphasis on the elimination of disability discrimination.
4. The agency shall consider appropriate disciplinary action against the
individuals responsible for the denial of higher level pay, including
the MDO. The agency shall report its decision. If the agency decides
to take disciplinary action, it shall identify the action taken. If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that corrective action
has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Cleveland, Ohio Processing and
Distribution Plant copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
_____________________________
Frances M. Hart, Executive Officer
Executive Secretariat
________03-08-02_____________________
Date
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
_________________________
1As relief, complainant stated that she was seeking higher level pay.
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.
3The Commission notes that while there is no documentary evidence of
record which verifies that the policy existed, the agency does not
challenge the MDO's statement.