0120080527
10-26-2009
Kimberly Duncan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Kimberly Duncan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120080527
Hearing No. 450-2007-00245X
Agency No. 4G752006607
DECISION
On November 9, 2007, complainant filed an appeal from the agency's October
31, 2007 final order concerning her equal employment opportunity (EEO)
complaint alleging 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 deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Rural Carrier at the agency's Cedar Hill Post Office in Cedar Hill,
Texas. Complainant had previously worked as a 204-B acting supervisor,
however she relinquished those duties because she disagreed with her
supervisor's management practices. On August 24 and August 25, 2006,
complainant had discussions with her first-line supervisor (S1) regarding
complainant's failure to follow instructions and the dress guidelines.
On August 28, 2006, complainant was diagnosed with major depression.
On August 30, 2006, complainant filed a workers' compensation claim for
depression and stress. A statement from complainant's doctor attached to
her claim stated that she was expected to be discharged from treatment in
four to six weeks. On October 25, 2006, complainant received a statement
from her doctor indicating that she was released to work seven hours a day
effective October 30, 2006 for eight weeks; however, she did not submit
the documentation to the agency. Instead, complainant spoke with S1 by
phone and told her she could return to work for seven hours a day with
no limitations. S1 informed complainant that the collective bargaining
agreement for rural carriers did not provide for light-duty work.1
Complainant's doctor released her to full duty with no limitations
in January 2007. Complainant claimed that she faxed the doctor's
statement to the Postmaster's (S2) office. S2 denied ever receiving
the documentation. On February 16, 2007, the agency sent complainant an
absence inquiry letter. On February 22, 2007, complainant sent a letter
to the agency indicating that she had been attempting to return to work,
but had been denied. On February 23, 2007, complainant obtained a return
to work certificate from her doctor stating that she could return to
work full-time with no limitations on March 1, 2007. S2 claimed that
she received the certificate on March 3, 2005; however, complainant did
not return to work until March 5, 2007. Complainant claimed that she
did not return sooner because no one contacted her.
On January 17, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Black) sex (female),
disability (major depression), and in reprisal for prior protected EEO
activity under Title VII when on October 31, 2006, she was not allowed
to return to work.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on August 15, 2007
and issued a decision on October 24, 2007. Initially, the AJ found
that complainant failed to meet the definition of an individual with
a disability. The AJ found that although complainant has been diagnosed
with depression, there was no evidence that her condition substantially
limited a major life activity. The AJ found that complainant testified
that she does not have any limitations when she takes her medication
and there was no other evidence of limitations. The AJ found that
complainant therefore was not a qualified individual with a disability.
Next, the AJ found that the evidence did not support a prima facie case of
discrimination on the bases of race and sex because there was no evidence
from which to create an inference of discrimination. The AJ found that
the comparators cited by complainant were not similarly situated because
both co-workers had their workers' compensation claims accepted while
complainant had not. Further, the AJ found that the record revealed
that there was no light-duty available to rural carriers under their
collective bargaining agreement and there was no evidence in the record
of any disabled individuals who had received light duty work. The AJ
therefore found that complainant failed to show that she was treated
differently than anyone outside her protected group and there was no
evidence creating an inference of discrimination.
As to reprisal, the AJ found that there was no evidence that complainant's
supervisors were aware of complainant's prior protected EEO activity.
The AJ found that although complainant received an unfavorable decision
regarding returning to work, an inference of reprisal could not be found
as there was no evidence that the responsible management officials knew
of complainant's prior protected activity.
The AJ then assumed argeundo that complainant had establish a prima facie
case of discrimination on the alleged bases and found that the agency had
articulated legitimate, nondiscriminatory reasons for its actions. The AJ
found that S1 and S2 both testified that under the agency's collective
bargaining agreement, rural carriers are not provided light duty work.
Further, the AJ found that both officials testified that they were not
aware of any limitations for complainant other than her request to work
seven hours per day for eight weeks and received no medical documentation
other than her workers' compensation documentation. The AJ found that
both testified that complainant presented no documentation indicating that
she could return to full duty until after they sent an absence inquiry
letter. S1 testified that complainant could return to work on March 1,
2007 when her doctor cleared her to return to full duty. The AJ found
that the agency had articulated legitimate, nondiscriminatory reasons
for its actions.
As to pretext, the AJ found that complainant testified that her problems
began after she declined to continue to act as a 204-B supervisor which
left S1 and S2 short-handed. The AJ found that complainant failed to
present any evidence proving that she submitted any documentation to the
agency between the filing of her workers' compensation claim in August
2006 and the March 1, 2007 documentation showing that she could return to
work full-time. The AJ therefore found that complainant failed to produce
any evidence that she was not allowed to return to work due to her race,
sex, alleged disability, or in reprisal for prior protected activity.
The AJ therefore found that complainant was not discriminated against
as alleged.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant generally questions why the AJ ignored her sworn
testimony and accepted S1 and S2's testimony as to conflicting facts as
more credible than her testimony. Complainant claims that the agency
admits that it is using the absence of a provision for light duty in
the collective bargaining agreement to nullify any obligation it has
under the Rehabilitation Act to provide a reasonable accommodation.
Complainant requests that we reverse the AJ's decision and the agency's
final order.
In response, the agency claims that complainant failed to establish
a prima facie case of discrimination. Further, the agency claims
that complainant admits that it was not really discrimination or
retaliation that brought her in conflict with the agency, rather it
was her resignation as a 204-B supervisor. The agency then claims
that even assuming complainant had established a prima facie case
of discrimination on the alleged bases, the agency has articulated
legitimate, nondiscriminatory reasons for its actions and complainant
produced no evidence establishing those reasons to be pretextual.
Accordingly, the agency asks that we affirm its final decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. In order to establish that
complainant was denied a reasonable accommodation, complainant must
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. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance").
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). S1 claims that complainant did not have an approved workers'
compensation claim and that since she could only work seven hours,
she would be considered light duty. S1 claims that under the terms of
the agency's collective bargaining agreement, there is no light duty
available for rural carriers. HT, S1's Testimony, at 24-25. Further,
S1 and S2 both testified that they never received any documentation from
complainant until after the agency sent complainant the February 15, 2007
absence letter. HT, S1's Testimony, at 30; HT S2's Testimony, at 110.
S1 testified that complainant could return to full duty as soon as her
doctor cleared her to return to full duty on March 1, 2007.
Assuming without deciding (for the purposes of this decision) that
complainant is an individual with a disability and a qualified individual
with a disability, the Commission concludes nonetheless that complainant
has failed to show that the agency failed to provide her with a reasonable
accommodation. Complainant claims that on October 25, 2006, she was
released by her doctor to work, but was restricted to working seven
hours a day for eight weeks. HT, Comp.'s Testimony, at 47; Report of
Investigation (ROI), Ex. 5. S1 testified that complainant called her and
said she could return to work, but could only work seven hours a day.
HT, S1's Testimony, at 17, 24. Further, S1 asserts that at no point
during the conversation did they discuss whether this restriction was
related to a disability. Id. S1 explained that she never received any
documentation indicating complainant's need for a shortened schedule.
HT, Comp.'s Testimony, at 18. Complainant, by her own admission, failed
to submit any documentation to the agency illustrating her restrictions.
HT, Comp.'s Testimony, at 47. Even if the complainant's telephone
conversation with S1 constituted a request for a reasonable accommodation,
we find that complainant failed to show that she submitted the necessary
documentation to demonstrate that her purported disability required her
to only work seven hours a day.
When an employee's disability and/or the need for a reasonable
accommodation is not obvious, the agency may ask complainant for
documentation about her disability and limitations. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act at question 6 (October 17, 2002).
Alternatively, the agency may simply discuss with the employee the
nature of his/her disability and limitations. Id. In the instant case,
complainant admits to not having any discussions with S1 or S2 about
her alleged disabilities. HT, Comp.'s Testimony, at 46, 71.
Accordingly, after a thorough review of the record and assuming arguendo
that complainant is a qualified individual with a disability, we find that
complainant has failed to prove that the agency denied her a reasonable
accommodation.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII or
Rehabilitation case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). First, complainant
must establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Next, the
agency must articulate a legitimate, nondiscriminatory reason(s) for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the agency is successful, then the complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s)
proffered by the agency was a pretext for discrimination. Id. at 256.
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
claims that complainant did not have an accepted workers' compensation
claim and the collective bargaining agreement between the agency and the
union does not provide for light duty for rural carriers. Further, S1 and
S2 both testified that they never received documentation that complainant
could return to full-time duty until after they sent the February 15, 2007
absence letter. HT, S1's Testimony, at 30; HT S2's Testimony, at 110.
S1 testified that complainant could return to full duty as soon as her
doctor cleared her to return to full duty on March 1, 2007. S1 and S2
both claim that complainant never informed them of her alleged disability
or any difficulties she faced related to her alleged disability. HT,
S1's Testimony, at 17; HT, S2's Testimony, at 113.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
were pretext for discrimination. Complainant claims that she was
treated differently because the only thing that had changed about
her was the disability. HT, Comp.'s Testimony, at 53. Additionally,
complainant asserts that two rural carriers were previously granted light
duty after suffering on-the-job injuries or restricted by a physician.
HT, Comp.'s Testimony, at 54-55. S1 avers that those co-workers had
accepted workers' compensation claims and were therefore considered
limited duty and not light duty. ROI, S1's Aff., at 5. We find that
aside from complainant's bare assertions, the record is devoid of any
persuasive evidence that discrimination was a factor in the agency not
allowing complainant to return to work. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were not the real reasons,
and that the agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden.
CONCLUSION
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's decision.
Therefore, we AFFIRM the agency's final order finding no discrimination.
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
October 26, 2009_
Date
1 We note that the record reveals that light duty is provided for
employees who have sustained an off-the-job injury; limited duty is for
those who have accepted workers' compensation claims.
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0120080527
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080527