01982630
08-31-2000
Karen R. Triplett, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Karen R. Triplett v. United States Postal Service
01982630
August 31, 2000
Karen R. Triplett, )
Complainant, )
) Appeal No. 01982630
v. ) Agency No. 4C-430-0076-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Complainant filed a timely appeal of a final agency decision finding no
discrimination. Her complaint alleged unlawful employment discrimination
on the bases of sex (female), age (2/14/47), and physical disability
(herniated lumbar discs, degenerative arthritis of shoulder and spine),
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleged she was
discriminated against when: (1) she was not selected for the position of
Custodian, PS-3. The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The record indicates that in March 1997, the complainant was employed as
a letter carrier, at the agency's Portsmouth Ohio Post Office facility.
The complainant alleged that she applied but was not selected for the
position of Custodian PS-3 and that a younger male employee with no
disabilities was selected. The agency investigated the complainant's
claims and on completion of the investigation, the agency issued a final
agency decision.
The agency concluded that it had legitimate non-discriminatory reasons
for not selecting the complainant. One of the selecting officials
stated that the complainant's knowledge of custodial work was minimal
and limited to house work. She also claimed that the complainant had
a previous record of safety problems, including one vehicular accident
and 5 industrial accidents. Finally, the selecting official indicated
that the complainant did not give a positive interview and that at one
point she cried while describing her physical problems. On the other
hand, she contended the selectee had experience both at home and in a
previous job doing custodial work on a part-time basis. The selectee
had only been involved in two industrial accidents in the past and did
not claim any physical problems.
The agency also found that the complainant failed to show that the
agency's reasons for not selecting her were a pretext for discrimination.
No additional statements were submitted by either party on appeal.
ANALYSIS AND FINDINGS
We have reviewed the evidence based on the analysis set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979); Prewitt v. United States Postal Service, 662 F.2d
292 (5th Cir. 1981), and find that although the complainant established
a prima facie case of sex and age discrimination, she failed to establish
by a preponderance of the evidence that she was discriminated against on
either of these bases. In an age discrimination case, the complainant
must show that age was determinative factor in the decision not to
select her. Although the complainant claimed the selecting official
indicated to her that she was not interested in hiring an older disabled
employee, we are not persuaded by a preponderance of the evidence that
age or disability was a determining factor. Rather, the selecting
official denied that she made any statement disparaging older workers.
She acknowledged that the complainant complained about being too sick to
perform carrier duties but she testified credibly that the complainant did
not interview well and that she presented herself in a negative light.
In addition, another manager who was present during the interview,
expressed that she was unaware the complainant had any specific medical
conditions and consequently she denied that they had any impact on the
selection process. Finally, there was significant and credible doubt
whether the complainant was physically able to perform the duties of a
PS-3 Custodian as discussed in more detail below. We also reached the
same conclusion regarding the complainant's claim of sex discrimination -
that is, she failed to show by a preponderance of the evidence that her
gender played a role in the decision not to select her for the position.
In order for the complainant to show she is entitled to protection by
the Rehabilitation Act she must first establish she is a �qualified'
individual with a disability. To do this, she must establish that she
has an impairment which substantially limits a major life activity.
29 C.F.R.� 1630.2(g)(1). We assumed for purposes of our analysis,
that the complainant was disabled within the meaning of the law because,
as discussed below, she failed to show she was a �qualified' individual
with a disability and, therefore, she was not protected by the statute.
We considered whether the complainant demonstrated she was able to perform
the essential functions of the position of Custodian PS-3 with or without
a reasonable accommodation. 29 C.F.R. �1630.2 (m). According to the
position description in the record, a Custodian PS-3 was required to climb
ladders, operate power-driven equipment, wash walls from scaffolding
and move furniture among other things. Based on this description,
we find that the requirements of the position were well outside of the
complainant's restrictions which included no tolerance for pushing and
pulling, lifting limited to less than 20 pounds, and limited climbing.
For this reason, we find that the complainant failed to show she was
able to perform the essential functions of the position and therefore,
she was not a �qualified' individual with a disability within the meaning
of the statute.
The complainant claims she should have been given the accommodation
of light duty work which she apparently equates with custodial work.
From the record, it appears that the agency made reasonable efforts to
accommodate the complainant's medical restrictions as she was taken
off her carrier duties and assigned a variety of office-based duties
for a time after her physician restricted her physical activities.
In addition, we do not agree with the complainant that the custodial
position in question did not require the heavier duties outlined by the
selecting official. The Commission finds that the record supports the
fact that the position required more physical demands than the complainant
could meet given her documented medical conditions.
CONCLUSION
Therefore, based on the foregoing and considering the record as a whole,
including arguments and evidence not specifically addressed in this
decision, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 31, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
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
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
The 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. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website:
www.eeoc.gov.