Julie D. Bearfield, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 5, 2003
01A04678 (E.E.O.C. Mar. 5, 2003)

01A04678

03-05-2003

Julie D. Bearfield, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Julie D. Bearfield v. United States Postal Service

01A04678

03-05-03

.

Julie D. Bearfield,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A04678

Agency Nos. 4G-720-0103-97

4G-720-0079-98

4G-720-0025-99

Hearing Nos. 250-99-8058X

250�99-8151X

250-99-8233X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint 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.

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405.

ISSUES PRESENTED

The issues presented herein are whether complainant has established

that the agency discriminated against her, as indicated below, when (1)

she was instructed to submit to a fitness-for-duty examination after

her personal doctor had requested that her overtime be limited to no

more than four hours per week; (2) on February 6, 1998, her bid job

hours were changed from 0700-1550 to 0500-1350 and later to 0900-1700;

and (3) on November 11, 1998, she was not allowed to return to her bid

reporting schedule after her injury compensation claim was accepted.

BACKGROUND

The record reveals that complainant filed Complaint Nos. 4G-720-0103-97,

4G-720-0079-98 and 4G-720-0025-99 on August 29, 1997, August 7, 1998

and January 16, 1999, respectively. In Complaint No. 4G-720-0103-97,

complainant alleged that she was discriminated against due to her sex

and disability (fatigue and stress) when she was instructed to submit to

a fitness-for-duty examination after her personal doctor had requested

that her overtime be limited to no more than four hours per week.

In Complaint No. 4G-720-0079-98, complainant alleged that she was

discriminated against due to her race (Black), disability (overuse

syndrome)<1> and retaliation (prior EEO activity) when, on February 6,

1998, her bid job hours were changed from 0700-1550 to 0500-1350 and

later to 0900-1700. In Complaint No. 4G-720-0025-99, complainant alleged

that she was discriminated against due to her race, disability (neck,

wrist and carpal tunnel syndrome) and retaliation (prior EEO activity)

when, on November 11, 1998, she was not allowed to return to her prior

bid reporting schedule after her injury compensation claim was accepted.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The AJ, however, issued a decision without a hearing, finding

no discrimination. The agency's final order implemented the AJ's decision.

Complaint No. 4G-720-0103-97

The record indicates that complainant began working for the agency on

November 8, 1986. At the time of the alleged discrimination, she worked

as an Automation Clerk at the agency's Southside Station in Little Rock,

Arkansas. On December 6, 1996, complainant provided her supervisor,

A-1, with a statement from her doctor indicating that her overtime be

limited to four (4) hours per week. The statement made no reference to

a diagnosis, prognosis or complainant's impairment. Complainant did

not discuss her condition with A-1; however, she indicated that her

impairment was so serious that her doctor suggested that she stop working.

A-1 forwarded a request to the Postmaster, A-2, for her agreement that

complainant be given a fitness for duty examination. According to A-1,

his decision was based on the medical statement from complainant's

doctor and the lack of information from complainant. A-1 also attached

complainant's attendance records for the prior 2 years and indicated

that her doctor's request �[f]alls closely on the heals of what seems

to be a rash of request[s] to get out of working overtime in CFS.� The

record indicates that the agency's doctors found, in pertinent part, that

complainant was medically qualified to perform the essential functions

of her position at the time of her examination.

The AJ found that complainant failed to establish prima facie cases

of discrimination based on sex or race because she failed to identify

similarly situated individuals who had work restrictions or who had made

similar requests to A-1, but who were not referred to fitness-for-duty

examinations. The AJ also found that complainant failed to establish

that she was within the protection of the Rehabilitation Act.

Complaint No. 4G-720-0079-98

In November 1997, complainant claimed to have difficulty in operating a

standard keyboard. She filed an OWCP claim, which was denied on January

27, 1998. On February 4, 1998, A-2 offered complainant a limited

light duty assignment which began at 5:00 A.M. The tour complied

with complainant's medical restrictions, which allowed keyboarding

for a half hour at a time with a thirty minute break in-between.

Complainant declined the offer on February 6, 1998, and was placed on

administrative leave pending the scheduling of a disciplinary hearing.

On February 10, 1998, a union steward asked A-2 to change complainant's

light duty assignment so that it did not begin at 5:00 A.M., because

complainant was a single parent and had no way of getting her kids to

day care, which started at 6:00 A.M. A-2 granted the union's request

and changed complainant's schedule to Tuesday, Wednesday, Thursday

and Friday from 9:00 A.M. to 5:30 P.M.; and Saturday from 7:30 A.M. to

4:00 P.M. Complainant accepted the light duty offer on February 11,

1998, but sought EEO counseling because she was not allowed to return

to her prior work schedule of 7:00 A.M. to 3:30 P.M.

Complaint No. 4G-720-0025-99

Complaint filed another claim for OWCP benefits, which was accepted for

consideration on November 4, 1998. She was extended an offer of limited

duty as a modified CFS Clerk on November 9, 1998, which she accepted.

On the offer form, however, she requested that she be allowed to return

to her regular work schedule of 7:00 A.M. to 3:30 P.M. When she was

not given her former shift hours, the complainant proceeded to file

a complaint.

With respect to Complaint Nos. 4G-720-0079-98 and 4G-720-0025-99, the AJ

found that the agency had a legitimate nondiscriminatory reason for its

work schedule assignment, i.e., A-2 took into consideration the needs of

the agency and complainant's work restrictions. Also, A-1 indicated that:

[d]ue to machine availability in CFS, 0700 to 1500 is the busiest time

in the office. This is the time when the office needs clerks who can key

from 1 � to 2 hours continuously throughout their tour. It is difficult

to schedule [complainant] into regular rotations due to her physical

limitations (can only key 30 minutes at a time).

Finding no evidence of pretext, the AJ found that the hours assigned to

complainant on February 6 and 11, 1998, were not because of her race,

disability or in reprisal for engaging in previous EEO activity.

ANALYSIS AND FINDINGS

Summary Judgment

The U.S. Supreme Court has held that summary judgment is appropriate where

a court determines that, given the substantive legal and evidentiary

standards that apply to the case, there exists no genuine issue of

material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). In ruling on a motion for summary judgment, a court does not

sit as a fact finder. Id. The evidence of the non-moving party must

be believed at the summary judgment stage and all justifiable inferences

must be drawn in the non-moving party's favor. Id. A disputed issue of

fact is "genuine" if the evidence is such that a reasonable fact finder

could find in favor of the non-moving party. Celotex v. Catrett, 477

U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,

105 (1st Cir. 1988). A fact is "material" if it has the potential to

affect the outcome of the case. If a case can only be resolved by

weighing conflicting evidence, summary judgment is not appropriate.

An AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

Upon review of the record, the Commission finds that the AJ correctly

determined that there were no genuine issues of material fact and that

summary judgement was appropriate. Furthermore, we find that the AJ's

decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. Construing the evidence

to be most favorable to complainant, we find that she failed to present

evidence that the agency's actions, i.e., the changes made to her duty

hours and the failure to restore her original duty hours, were motivated

by discriminatory animus toward complainant's protected classes.<2>

Consequently, we discern no reason to disturb the AJ's decision as to

these claims.

We note, however, that the AJ's decision did not use the correct standard

of review with respect to the agency's order that complainant submit to a

fitness-for-duty examination (Complaint No. 4G-720-0103-97). Instead of

determining whether the referral was job-related and consistent with

business necessity, the AJ erred by utilizing a disparate treatment

analysis. Therefore, the Commission will address this issue below.

Medical Examination

The Rehabilitation Act was amended in 1992 to apply the standards of the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.<3>

The Rehabilitation Act places certain limitations on an employer's

ability to make disability-related inquiries or require medical

examinations of employees only if it is job-related and consistent with

business necessity. 29 C.F.R. �� 1630.13(b), .14(c).<4> Generally, a

disability-related inquiry or medical examination of an employee may be

"job-related and consistent with business necessity" when an employer

"has a reasonable belief, based on objective evidence, that: (1) an

employee's ability to perform essential job functions will be impaired

by a medical condition; or (2) an employee will pose a direct threat due

to a medical condition."<5> Enforcement Guidance - Disability-Related

Inquiries, at 15-16. It is the burden of the employer to show that its

disability-related inquiries and requests for examination are job-related

and consistent with business necessity. Id. at 15-23. Because the

restrictions on employers with regard to disability-related inquiries

and medical examinations apply to all employees, and not just to those

with disabilities, it is not necessary to inquire whether the employee

is a person with a disability. Enforcement Guidance - Disability Related

Inquiries, p. 3. Instead, we focus on the issue of whether the agency's

order that complainant undergo a Fitness-for-Duty examination was lawful.

Complainant submitted to A-1 a statement from her doctor indicating that

she could only work four hours of overtime each week. The statement,

however, did not mention a physical or mental impairment of any nature

or duration. Furthermore, complainant told A-1 that her doctor stated

that her medical condition was such that she might have to quit her

job. Complainant would not discuss any other details about her condition.

We find that A-1 had a reasonable belief, based on objective evidence,

that complainant's ability to perform essential job functions was impaired

by her medical condition or that there was a direct threat to her safety

due to her medical condition.<6> Upon review of the record and the AJ's

findings of fact, we conclude that the agency met its burden of showing

that the decision to order complainant to undergo an examination was

job-related and consistent with business necessity. Accordingly, we

find that the examination was not a violation of the Rehabilitation Act.

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

___03-05-03_______________

Date

1Complainant's affidavit appears to characterize �overuse syndrome� as

a type of depression.

2In reaching the above decision, we assumed, for analytical purposes

only, that complainant was within the protection of the Rehabilitation

Act as alleged.

3See 29 U.S.C. � 791(g); See also 29 C.F.R. Part 1630 (EEOC's ADA

regulation); 67 Fed. Reg. 35732 (5/21/02)(updating Section 501 rule in

accordance with 1992 amendment.)"

4See EEOC Enforcement Guidance on Disability-Related Inquiries and

Medical Examinations of Employees Under the Americans with Disabilities

Act (Enforcement Guidance - Disability Related Inquiries), No. 915.002

(July 26, 2000); Enforcement Guidance on the Americans with Disabilities

Act and Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement

Guidance on Preemployment Disability-Related Questions and Medical

Examinations (Enforcement Guidance - Preemployment) (October 10, 1995).

5�Direct threat" means a significant risk of substantial harm that cannot

be eliminated or

reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r).

6In reaching the above decision, we placed great emphasis on the fact

that complainant told A-1 that her doctor opined that she might have to

quit her job due to her medical condition, but then refused to provide

him with any details.