01A11225
01-23-2002
Isabel Fernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Isabel Fernandez v. United States Postal Service
01A11225
January 23, 2002
.
Isabel Fernandez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11225
Agency Nos. 4E-852-1138-94, 4E-852-1127-95 & 4E-852-1184-96
Hearing No. 350-A0-8063X
DECISION
Introduction
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaints of unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
Background
During the period in question, complainant was employed as a PS-5
Part-time Flexible (PTF) Distribution Clerk at a California facility of
the agency. Complainant filed three EEO complaints against the agency,
which have been consolidated, alleging that it discriminated against
her on the bases of national origin (Hispanic) and sex (female) when it
(1) required complainant to work all Sundays and gave her less hours
and overtime than another employee, (2) gave complainant an official
discussion and issued her a Letter of Warning (LOW), and (3) issued
complainant a Notice of Removal.<1>
The agency responded that (1) complainant was consistently assigned
Sundays because she was the only PTF clerk for a period of time but the
rotation of Sunday work hours increased as the number of available PTF
clerks increased, complainant's poor leave record impacted the amount of
leave she was allowed to use, mail volume dictated the hours required
by regular and PTF employees, and, as the title suggests, there was
greater flexibility in scheduling PTF clerks, (2) complainant was given
an official discussion and then a LOW because she incorrectly completed
a daily work hour form twice after receiving a �stand-up talk�on the
subject, (3) complainant was issued a Notice of Removal because she
failed to report to work as scheduled, without authorization, and failed
to provide documentation or proof of an emergency that would preclude
her from reporting<2>.
The record reveals the following. Between May 1993 and late 1994,
complainant was for some time the only PTF clerk and she was frequently
assigned to work on Sundays. However, complainant did not work every
Sunday and other PTF clerks also worked on Sundays. In addition,
the accrual of overtime consistently varied between the PTF clerks
depending upon changing circumstances, such as the use of leave.
In 1994, a new supervisor (S1) was assigned to complainant's facility.
Upon his arrival, S1 informed employees of his policies and procedures
and, in August 1994, held a �stand-up� talk addressing the proper way
to complete a daily work hour form. A daily work hour form indicates
the amount of time an employee spends each day completing various tasks.
An employee is asked to specify the number of hours spent on each task
and may use the term �rest� once on the form to indicate a task he/she
spent the rest of the day completing. Following the �stand-up talk,�
complainant used the term �rest� twice on her form so management was
unable to determine how much time she spent on two tasks. S1 initially
gave complainant an official discussion on the matter and subsequently
issued complainant a LOW when she committed the infraction again.
Shortly after receiving the LOW, in September 1994, complainant submitted
a slip from a physician, which indicated that she was unable to work
for six days due to medical illness. From that time, complainant
continuously submitted slips from her psychiatrist, which indicated
that she was unfit to return to her duties as a clerk.<3> The slips
consistently cited depression, anxiety, and stress, and occasionally cited
Mild Post-Traumatic Stress Disorder, Adjustment Disorder, Hypersomnia,
poor concentration, and low energy, as the reasons for complainant's
absence from work. The slips also stated that complainant should not
remain in the same work location because a large amount of her stress
was brought on by work-related issues. In September 1995, the agency
referred complainant to a psychologist for a second opinion evaluation
in response to a claim complainant filed with the Office of Workers'
Compensation Programs (OWCP) for her medical illness. The psychologist
found that neither his observations nor the record justified a diagnosis
of Post-Traumatic Stress Disorder or Adjustment Disorder and, in general,
the psychiatrist's diagnoses were without support. In addition, the
psychologist further found that depression, if present, was a minor
clinical issue, and that complainant probably suffered from Paranoid
Schizophrenia as she thought there was a conspiracy to obstruct her
agency employment. The psychologist advised complainant to develop
more effective coping skills, focus on family issues, and work on her
interactions with males.
In a letter dated April 11, 1996, the agency requested medical
documentation from complainant to support her continued absence.
Complainant responded<4>, but in a letter dated April 29, 1996, the agency
informed complainant that her response was insufficient because she
failed to provide evidence to support her continued absence from work.
The letter informed complainant that her employment would be terminated
on June 2, 1996. Subsequently, complainant submitted a physician's
slip asking that the agency grant a medical leave of absence from April
30, 1996 through May 30, 1996 for �psychological stress, depression
and anxiety.� Complainant has stated that the agency's actions have
affected her emotional and physical well-being and caused her chronic
diarrhea and an angina attack.
The agency conducted investigations and informed complainant of her
right to elect an administrative hearing before an EEOC administrative
judge (AJ) or an immediate FAD. Complainant chose the former. An AJ,
without a hearing, found no discrimination. Specifically, the AJ found
that claim (1) is moot because neither complainant nor the responsible
management official work at the facility any longer and complainant's
status was changed from PTF to Regular. With respect to claims (1)-(3),
the AJ found that, assuming complainant had a disability, she was not
qualified. The AJ noted that the complainant's own physician's reports
clearly state she is not able to perform the duties of her position.
The agency issued a final decision (FAD) implementing the AJ's decision.
This appeal followed.
Analysis and Findings
With respect to claim (1), the Commission finds that the matter states
a claim. The Commission further finds that complainant failed to
present evidence that the reasons articulated by the agency for its
actions alleged in claims (1) or (2) were pretextual. In reaching this
conclusion, we considered that complainant was the only PTF clerk for
some time, there was greater flexibility in scheduling PTF clerks as
opposed to regular clerks, and other PTF clerks were assigned Sundays.
Also, it appears that complainant and other PTF clerks worked comparable
overtime. In addition, the record reveals that complainant was informed
of the proper procedure for completing the daily work hour form and she
was the only person who used �rest� twice on her form and did so on more
than one occasion.
Regarding claim (3), complainant appears to allege that the agency failed
to provide a reasonable accommodation when it denied her request for
continued absence and instead removed her from agency employment.
Reasonable accommodation includes modifications to the manner in which
a position is customarily performed in order to enable a qualified
individual with a disability to perform the essential job functions.
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (2002) (Enforcement Guidance).<5>
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. In order to establish
disability discrimination, complainant must first show that: (1) she is
an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2)
she is a qualified individual with a disability pursuant to 29 C.F. R. �
1630.2(m); and (3) the agency failed to provide a reasonable accommodation
although to do so would not pose an undue hardship on its operations.
Enforcement Guidance.
As a threshold matter, complainant must establish that she is an
�individual with a disability� within the meaning of the Rehabilitation
Act. For the purpose of analysis, we shall assume that complainant has
established that she is an individual with a disability.
Complainant must also show that she is �qualified� within the meaning
of 29 C.F.R. � 1630.2(m). A qualified individual with a disability
means an individual with a disability who satisfies the requisite skill,
experience, education and other job-related requirements of the position
in question and who, with or without reasonable accommodation, can
perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
We find that the record supports the AJ's conclusion that complainant
was not qualified within the meaning of the Rehabilitation Act and thus
not entitled to protection under the Act.
Conclusion
The Commission finds that the grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. We find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's protected classes.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 23, 2002
__________________
Date
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
______________________________
1Complainant also alleged reprisal for prior EEO activity for claim (2)
and age (over 40), disability (Mental Health concerns), and reprisal
for claim (3).
2We note that complainant also filed a grievance on the Notice of Removal
and it has been rescinded. In addition, complainant has been placed on
the agency's rolls in non-duty status as her OWCP claim was eventually
accepted.
3Complainant was initially on paid leave but later used leave without pay
(LWOP).
4Complainant stated that her medical documentation did not expire until
April 30, 1996.
5The 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.