0120071375
05-14-2009
Lottie M. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lottie M. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071375
Hearing No. 310-2005-00565X
Agency No. 4G-760-0083-05
DECISION
On January 12, 2007, complainant filed an appeal from the agency's
December 14, 2006 notice of final action 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.
BACKGROUND
The record reveals complainant worked as a computerized forwarding system
(CFS) clerk at the agency's Fort Worth Processing and Distribution Center
(P&DC). In July 2001, complainant suffered an on-the-job injury and
was diagnosed with carpal tunnel syndrome and cervical disc disease
which left her with workplace restrictions. As a result, complainant
was offered and accepted a modified CFS clerk position in accordance
with her restrictions. At the time the issues in this complaint arose,
complainant's modified job schedule was 1:30 p.m. - 10:00 p.m. with
Friday/Sunday off days. In September 2004, all the jobs in complainant's
CFS unit were abolished due to the implementation of the Postal Automated
Redirection System (PARS). As a result, employees in the unit were
give temporary jobs until new CFS positions were created. The newly
created CFS jobs were to be awarded pursuant to a bidding process under
the Collective Bargaining Agreement (CBA) between the agency and the
American Postal Workers Union.
On January 31, 2005, a Human Resources Specialist sent complainant a
letter informing her that she could state a preference for a newly-created
position by completing the requisite form by February 7, 2005. The letter
also advised that if complainant was either a light-duty or limited-duty
employee, she was to provide medical documentation stating that she would
be "full-duty within six months." Complainant immediately informed her
supervisor (S1) that her condition was permanent and therefore, she would
not be at "full-duty within six months." Complainant elected not to bid
on any open position due to her restrictions since her restrictions were
permanent and would not be gone within six months.
The physical requirements of the newly created CFS clerk position
included: continuous lifting of ten pounds; lifting up to 25 pounds
intermittently: intermittent fine manipulation (including using the
keyboard for eight hours per day); and reaching above the shoulders two
hours per day. As of February 10, 2005, complainant was restricted
to lifting up to five pounds and was restricted to working on the
keyboard for four hours per day, with a non-keying job every other hour.
On February 24, 2005, complainant's restrictions included: lifting a
maximum of 10 pounds intermittently for five hours; walking two hours;
bending/stooping two hours; twisting four hours; fine manipulation
(including keying) four hours; pushing/pulling four hours; and no lifting
above shoulders.
On February 10, 2005, complainant was offered a modified CFS clerk
assignment where her work hours changed from 6:00 p.m. to 2:30 a.m. with
Saturday/Sunday off days. The duties of the modified assignment were:
prepare change of address (COA) requests for two hours; key letters or
flats intermittently for four hours; verify COAs for one hour; label
and dispatch 3579s for one hour; and provide relief for Optical Scanning
Workstation (OSW) for eight hours. The physical requirements of the job
were: keying on the keyboard and sitting for four hours; grasping mail
four hours; pulling or pushing two hours; and standing eight hours.
Complainant filed an EEO complaint dated April 21, 2005, alleging that
she was discriminated against on the basis of disability when on February
10, 2005, the agency changed her modified assignment hours and denied
her a bid preference.1
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. On April 28, 2006, the agency filed a motion
for findings and conclusions without a hearing. Complainant filed
her response and a cross motion for summary judgment on May 30, 2006.
Over complainant's objections, the AJ assigned to the case granted the
agency's motion for a decision without a hearing and issued a decision
without a hearing on October 20, 2006, finding complainant failed to
prove that she was subjected to discrimination as alleged.
In her decision, the AJ found that with regard to her disparate treatment
claim that complainant was denied a bid job, complainant failed to point
to any similarly situated employee who received preferential treatment.
Specifically, the AJ noted there were no examples of anyone in the CFS
unit as to whom the six-month condition was not enforced.
Moreover, the AJ recognized complainant's arguments largely focused
on the agency not engaging in the interactive process to determine
what accommodations she would need to perform the essential functions
of the job. However, the AJ noted that liability only attaches if,
had a good faith interactive process occurred, the parties could have
found a reasonable accommodation that would allow the individual with
a disability to perform the essential functions of the job. The AJ
found complainant's supervisor (S1) stated the ability to key on the
keyboard for eight hours was the primary essential function of the job.
The AJ noted that although S1 stated there were other duties that could be
performed by the person occupying the bid (such as staging, lifting tubs
of flats, dispatching, pushing APCs, and photocopying 3547s), these were
not significant, and complainant could not perform them anyway with the
exception of pushing APCs. Thus, the AJ found complainant could not fully
perform eight hours of keyboarding since she is limited to four hours
of keyboarding alternating with non-keying functions every other hour.
The AJ also addressed complainant's claim that she was subjected to
disparate treatment when her schedule was changed. Specifically, the AJ
found despite complainant's claim to the contrary, Employee 1 and Employee
2 were not similarly situated to complainant. The AJ found Employee
1 had never been a CFS employee. The AJ noted that Employee 2 held a
bid job in CFS, but did not have limitations similar to complainant, and
thus, she was utilized to "dispatch, stage, or Xerox 3547 flats," while
complainant could not perform these duties due to medical restrictions.
The AJ found even if complainant established a prima facie case of
intentional discrimination, the agency articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, the AJ found
that the agency stated it could better utilize complainant at the 6:00
p.m. start time in view of her medical restrictions. S1 explained
that beginning earlier that year there were twice as many OSW forms to
be scanned, and, thus, an additional employee on the OSW was needed.
Since complainant could perform the OSW operation, S2 assigned those
duties to complainant. Thus, S1 stated that whenever complainant needed
to switch to a non-keying job, per her restrictions, she could work
on OSW. Since there was already an employee working the OSW at the
2:30 starting time, S1 explained that is why complainant was assigned
to the later time. The AJ found complainant did not offer a rebuttal
for S1's explanation for scheduling complainant to the second shift.
The AJ found the agency may choose among reasonable accommodations as
longs as the chosen accommodation is effective.
The agency subsequently issued a notice of final action fully implementing
the AJ's decision. The agency found that complainant failed to prove
that she was subjected to discrimination as alleged.
On appeal, complainant claims the AJ failed to address the issue of
her being treated disparately when she was denied the opportunity to
competitively bid for preferential job assignments as employees outside
of her protected class (non-disabled). Complainant contended that the
new CFS Mark-up clerk position was identical to the position she held as
a modified clerk since 2001. Complainant argued that the position did
not require eight hours of continuous keyboarding since S1 noted that
there other duties listed for the position including staging, lifting
tubs of flats, dispatching (pulling full bags of mail), pushing APCs
full of mail and Xeroxing 3547 flats.
Complainant also claims that she was treated disparately when she was
"the only individual that was being coerced to carry out the OSW duties
which adversely affected her begin tour hours." Complainant claims
Employee 1 and Employee 2 were similarly situated and could have carried
out the OSW duties that complainant was forced to carry out.
Complainant alleges the AJ failed to address her claim that she was denied
a reasonable accommodation in the form of modified work hours when she was
not allowed to competitively bid on job assignments. Complainant contends
the agency failed to initiate the interactive process to determine a
reasonable accommodation for a preferential competitive bid position.
She argues the AJ erred in finding that even if the agency had engaged
in the interactive process with respect to the bid positions, there
would not have been a reasonable accommodation that would have enabled
complainant to perform the essential functions of the newly-created bid
job. Specifically, complainant states she had been performing the exact
same position since 2001 with accommodations absent undue hardship to
the agency. Complainant claims that after she was denied the opportunity
to bid, she continued to carry out the duties of a CFS Mark-up clerk.
Complainant claims the agency violated the Rehabilitation Act when it
"uniformly required medical documentation at the pre-offer stage for ALL
employees." Finally, complainant also claims that the agency's policy
"had a disparate impact on qualified individuals with disabilities who
successfully bid on a position open for bidding, but needed a reasonable
accommodation in order to perform the duties of that position."
In response to complainant's appeal, the agency contends the AJ correctly
determined complainant failed to prove that she was subjected to
disparate treatment. With regard to complainant's claim that the agency
prevented her from bidding while it allowed other unnamed employees
to bid, the agency notes complainant conceded that she informed S1
that she was incapable of performing the bid assignment, would never
be able to do so, and elected not to place a bid. The agency notes
complainant failed to identify any employee outside her protected group
who was identical to her in relevant aspects of their work situation
and treated more favorably. The agency states complainant failed to
present evidence that any employee was awarded a bid assignment after
electing not to bid. Further, the agency noted complainant failed to
identify any employee in the CFS unit that was not also subjected to
the "full-duty within six months" requirement. The agency states that
despite complainant's claim to the contrary, Employee 1 was not similarly
situated to complainant since Employee 1 had never been a CFS employee.
Further, the agency found Employee 2 was not similarly situated since
Employee 2 did have a bid job in CFS, but could key for eight hours,
stage, lift tubs of flats, dispatch (i.e., pull full bags of mail),
push APCs full of mail, and Xerox 3547 flats, unlike complainant.
The agency contends it did not deny complainant a reasonable
accommodation. The agency argues the Rehabilitation Act does not
require it to: (1) eliminate essential functions of complainant's job;
(2) lower standards to accommodate complainant; (3) expect other employees
to work harder or longer; (4) modify another job so complainant could
perform that job; (5) create a job for complainant that does not exist
within the organization; or (6) provide similar accommodation to all
similarly situated employees. The agency reiterates there was no
reasonable accommodation that would have allowed her to perform the
essential functions of the bid assignment. Moreover, the agency notes
complainant does not contend that the modified job offer she accepted
on February 17, 2005, failed to accommodate her restrictions.
Furthermore, the agency notes that it appears complainant is now trying
to raise a disparate impact claim. The agency states that disparate
impact was never an accepted issue and argues complainant cannot now
raise it for the first time on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Upon review, we find the AJ properly found that complainant failed
to identify any similarly situated employees who received preferential
treatment, i.e., who were not subject to the "full duty within six months"
requirement. Additionally, the record reveals complainant was not able to
perform the essential functions of the newly created CFS clerk position
since an essential function of that position was the ability to key for
eight hours. Although complainant argues that the keyboarding duties in
the newly created CFS clerk position must have been less than eight hours,
we find that although there were other duties assigned to this position,
that even if these other duties were performed on a daily basis, the
keyboarding duties clearly comprised the vast portion of the duties.
Complainant does not claim or show that the keyboarding duties in the
newly created CFS clerk position were less than four hours per day.
We note that complainant does not dispute that at the time she was limited
to four hours of keyboarding per day and had to alternate non-keying jobs
every hour. Despite complainant's contention, we note that her ability to
perform her previously held modified job or the modified job she accepted
on February 17, 2005, is irrelevant to whether complainant could perform
the essential functions of the newly-created bid position since the
modified positions and the newly-created bid job were distinct positions.
Thus, we find even if the agency had engaged in the interactive process
with respect to the bid position, there would have not been a reasonable
accommodation that would have enabled complainant to perform the essential
functions of the newly-created bid job.
Moreover, complainant has not shown that she was subjected to disparate
treatment when her work schedule was changed to a 6:00 p.m. start time.
We find the agency has articulated legitimate, non-discriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination. Specifically, the agency has explained that beginning
earlier in 2005, there had been twice as many OSW forms to be scanned.
Since complainant was restricted to keying for four hours and had to
alternate every other hour between keying and non-keying functions, the
agency assigned complainant to the second shift so she could work on the
OSW operations on that shift since there was already someone working
on the OSW operations on the first shift. We find complainant has
failed to show that the agency's actions were a pretext for prohibited
discrimination. Furthermore, we note complainant has not alleged that
as a result of accepting the February 17, 2005 position, that she was
forced to work beyond her medical restrictions.
To the extent complainant is alleging that she was subjected to disparate
impact or that the agency's actions constituted an impermissible medical
inquiry, we note that neither of these claims were accepted for processing
by the agency. Moreover, we note complainant did not challenge the
definition of the accepted issues to the agency or while her case was
pending before the AJ. Therefore, we find these issues are not part of
the subject complaint and will not be addressed on appeal.
Accordingly, the agency's final action finding no discrimination is
AFFIRMED.
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
May 14, 2009
__________________
Date
1 After the investigation of her complaint began, complainant added the
bases of race and color to her complaint.
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2
0120071375
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120071375