01982814
09-10-2002
LoVetta Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
LoVetta Brown v. USPS
01982814
September 10, 2002
.
LoVetta Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01982814
Agency Nos. 1F-946-1002-96
1F-946-1028-96
Hearing Nos. 370-96-X2773
370-97-X2004
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her formal 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. For the reasons
that follow, the agency's final decision is affirmed.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven, by
preponderant evidence, that she was discriminated against on the bases
of sex (female), disability (bilateral carpal tunnel syndrome and right
trapezius strain), and reprisal (prior EEO activity) when the agency
placed her on leave without pay status and failed to place her in a
position commensurate with her medical limitations.
BACKGROUND
Information in the evidentiary record reveals that complainant was
employed as a Distribution Clerk in the agency's Processing and
Distribution Center (P&DC) in Oakland, California. Between 1992 and
February 1995, complainant filed several claims with the Department of
Labor's Office of Worker's Compensation Programs (OWCP).<1> During this
time, she was unable to perform the normal duties of a Distribution Clerk
because the job required repetitive hand motions. While complainant's
OWCP claims were pending, she continued to report to work. She was
assigned miscellaneous tasks by her supervisors.
In February 1995, the agency was informed by OWCP that complainant's last
OWCP claim was denied. Pursuant to agency policy, complainant was no
longer entitled to limited duty assignments and guaranteed pay. Instead,
complainant was deemed a light duty employee. Because there were no light
duty assignments currently available, a Senior Manager of Distribution
Operations (SMDO), by letter dated February 19, 1995, informed complainant
that she had been placed on leave without pay status. In a letter dated
February 23, 1995, complainant contested being placed on leave without
pay status. The SMDO then explained that although her seniority was
considered in trying to place her in a light duty position,<2> there
were no such positions available within her limitations.
The Acting Senior Plant Manager (ASPM) stated that he met with the SMDO
in February 1995, to review light duty assignments in the Oakland PD&C.
He confirmed the SMDO's contention that complainant was placed on leave
because no light duty assignments were available. The ASPM went on
to state that he directed the SMDO to continue to look for assignments
that were within complainant's medical limitations. The ASPM also met
with complainant and various union officials to discuss complainant's
situation but, in the end, no work could be found for complainant.
Complainant, after being out of work for about two and a half months,
wrote to the SMDO regarding a job in the agency's Box Section on Tour 1.
The SMDO responded that work was available if �you bring in an updated
medical statement from your physician indicating that you are cleared to
perform the work.� Complainant reported to work in July 1995, expecting
to be assigned duties in the Box Section. She stated that once she
arrived, no one knew what she was supposed to do. She also stated that
she never knew what the Box Section duties entailed. She was then sent to
the Hand Cases section where she requested light duty. The Hand Cases'
supervisor instructed complainant to report to the office because he
had no light duty work available. Complainant left after a few hours.
Sometime between July 1995 and September 1995, complainant received a
letter from the agency offering her a position as a Distribution Clerk
in the Incoming Distribution Unit. The agency informed her that before
she took the job, she must provide medical documentation indicating that
she could perform the work. In response, complainant informed the agency
that she could not perform the work due to her medical limitations.
Complainant's next attempt to report to work occurred on the evening
of September 6, 1995. When she arrived, a Manager of Distribution
Operations (MDO)<3> would not allow her to clock in. He suggested that
she wait until the Tour 1 supervisors arrived to clock in. When the
Tour 1 supervisors arrived, complainant reported to another Senior
Manager of Distribution Operations (SMDO2) who asked for her medical
restrictions. Complainant provided the SMDO2 with the Medical Examination
and Assessment form completed by the Postal Service Medical Office.
According to complainant, the SMDO2 left and spoke with the SMDO. When
the SMDO2 returned, she told complainant to throw mail into hand cases.
Complainant indicated to the SMDO2 that she could not do that because it
required repetitive hand and wrist movements. The SMDO2 asked complainant
what she could do, and complainant mentioned a job in Data Collection.<4>
The SMDO2 then stated that there was no work available if she could not
throw mail. Complainant left the post office and never returned.
By memorandum dated September 7, 1995, the SMDO notified the Injury
Compensation office that notwithstanding the contents of complainant's
medical release, complainant claimed that she could not case mail or
perform other duties except �sweating� mail in the Box Section. The
memorandum also indicated that �sweating� mail was no longer available.
On September 8, 1995, complainant initiated contact with an EEO counselor
regarding the incident of September 6, 1995; and on December 26, 1995,
regarding being placed on leave without pay status in February 1995.
When counseling did not resolve either matter, complainant filed a formal
complaint on October 20, 1995, regarding the September 6 incident; and
one on March 20, 1996, regarding the February 1995 incident. The agency
accepted both complaints for investigation. At the conclusion of the
investigations, complainant was informed of her right to elect a hearing
before an EEOC administrative judge (AJ) or, in the alternative, an
immediate final decision from the agency. Complainant elected to have
a hearing before an AJ. As such, the investigative file was forwarded
to the appropriate EEOC district office and assigned to an AJ. The AJ
consolidated both complaints for further administrative processing and
hearing. After the hearing, the AJ issued a finding of no discrimination
regarding the incident of September 6, and dismissed the incident of
February 5 for untimely contact with an EEO counselor.<5> The agency's
final decision adopted the AJ's findings. It is from that decision that
complainant appeals.
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).
Disparate Treatment - Sex and Reprisal
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973) 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.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, we find that the agency has stated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
stated that complainant was not placed in a position commensurate with
her medical limitations because there were no such positions available.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant has failed to meet that burden. Complainant
made no arguments nor submitted any evidence which suggests that the
agency's actions were based on sex or reprisal. For that reason,
complainant's sex and reprisal claims must fail.
Reasonable Accommodation - Disability
Under the Commission's regulations, an agency is required to make
reasonable accommodation for 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. 29 C.F.R. �
1630.2(o); 29 C.F.R. � 1630.2(p). Once the agency has determined that
an individual cannot be accommodated in his or her current position or
that such accommodation would impose an undue hardship on the agency,
then reassignment, the accommodation of "last resort,� must be considered.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act (Enforcement Guidance),
No. 915.002 (March 1, 1999); Essenfeld v. National Security Agency,
EEOC Appeal No. 01961377 (December 12, 1997); Interpretive Guidance
on Title I of the Americans With Disabilities Act, Appendix. to 29
C.F.R. Part 1630.2(o).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
she is an "individual with a disability." We shall assume, arguendo,
that complainant established that she is an individual with a disability
covered by the Rehabilitation Act.
Complainant also must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). She can making
this showing by presenting evidence indicating that she satisfies the
requisite skill, experience, education and other job-related requirements
of the employment position she holds or desires, and with or without
accommodation, can perform the essential functions of such position."
29 C.F.R. � 1630.2(m); see also 29 C.F.R. � 1630.3 (exceptions to
definition). The record is clear that complainant could not perform
the essential functions of her Distribution Clerk position because that
position required repetitive hand motions. Accordingly, we find that
complainant is not qualified with respect to that position.
However, the discussion of �qualified� does not end at complainant's
Distribution Clerk position because the term "position" is not limited
to the position held by the employee, but also includes positions
that the employee could have held as a result of reassignment. Thus,
in determining whether an employee is "qualified," an agency must look
beyond the position which the employee presently encumbers and consider
reassignment. We note that because this case arose prior to June 20,
2002, the Commission will apply 29 C.F.R. � 1614.203(g), its prior
regulation regarding reassignment.<6>
The complainant has an evidentiary burden in reassignment cases
to establish that it is more likely than not (preponderance of the
evidence) that there were vacancies during the relevant time period into
which complainant could have been reassigned. Clearly, complainant can
establish this by producing evidence of particular vacancies. However,
this is not the only way of meeting complainant's evidentiary burden.
In the alternative, complainant need only show that: (1) he or she was
qualified to perform a job or jobs which existed at the agency, and (2)
that there were trends or patterns of turnover in the relevant jobs so
as to make a vacancy likely during the time period.
In attempting to satisfy her burden, complainant identified a position
in the Box Section that the agency admitted was vacant. However, she
failed to present evidence that the duties entailed in that job were
commensurate with her medical limitations. In addition, the agency
identified two positions (i.e., the Distribution Clerk position in the
Incoming Distribution Unit and a position requiring her to throw mail
into hand cases), which complainant stated that she could not perform
with or without a reasonable accommodation. Complainant also argues,
in an effort to meet her burden, that the agency failed to look beyond
the facility in which she worked in order to find a position into which
she could have been reassigned. But in analyzing reassignment under the
.203(g) rule, the agency's failure to conduct either any search at all,
or a broad enough search, for a new position for complainant will not,
by itself, result in a finding of discrimination. Rather, the record
must be examined for evidence that, had the search been conducted,
there would have been an appropriate vacancy. After examining the
record, the Commission finds that there is no evidence in the file
from which to conclude the agency would have found an appropriate
vacancy for complainant if a broad enough search had been conducted,
and therefore holds that the agency's actions were not violative of the
Rehabilitation Act.
CONCLUSION
Upon review, the Commission finds that the AJ's decision summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws regarding complainant's sex and reprisal claims. The Commission
also finds that the AJ's decision referenced the relevant facts in
determining that the agency's denial of complainant's request for
a reasonable accommodation did not violate the Rehabilitation Act.
Accordingly, the agency adoption of the AJ's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
September 10, 2002
__________________
Date
1Complainant had been diagnosed with bilateral carpal tunnel syndrome
and right trapezius strain allegedly brought on and aggravated by her
employment duties handling mail, coding, pushing and pulling, lifting
and throwing mail.
2Complainant had been employed by the agency since 1976.
3We note that the SMDO and the MDO are two different agency officials.
4Complainant stated that the Data Collection job entailed office duties.
5Since the AJ's dismissal, and the agency's adoption thereof, have no
material effect on the outcome of our decision, we decline to address
whether the dismissal was appropriate.
6 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the Federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.