0120090393
02-11-2009
Marie L. Frederick-Yszenga, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marie L. Frederick-Yszenga,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090393
Hearing No. 443200800082X
Agency No. 4J530009007
DECISION
On October 27, 2008, complainant filed an appeal from the agency's
September 26, 2008 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of 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 decision.
BACKGROUND
At the time relevant to this complaint, complainant worked as a
Mall Processing Clerk, PS-05, at the Kenosha Post Office in Kenosha,
Wisconsin.
On September 11, 1999, complainant sustained an on-the-job lower back
injury that resulted in herniated discs L4 & L5. On November 17, 2006,
complainant's doctor issued the agency a letter stating that complainant
had a permanent condition that resulted in restrictions of lifting no more
than 20 pounds, frequently lifting or carrying no more than 10 pounds,
freedom to change body positions as needed, and to work no more than
four hours per day. Subsequently, complainant accepted a Rehabilitation
Job Offer for a modified assignment created specifically to accommodate
her restrictions.
On or around August 8, 2007, a customer complained that there was a car
parked in the customer disabled parking spot without a permit. As a
result, complainant and other employees were told by the Postmaster
to stop parking in those spots per the union agreement. Despite the
Postmaster's orders and warnings, complainant continued to park in the
customer disabled parking spot, stating that she had parked there for
five years. On September 8, 2007, she was issued a Notice of 7-Day
Suspension for "failure to follow instructions." The suspension was
later reduced to a Letter of Warning.
On September 24, 2007, complainant gave the Postmaster a written request
for a reasonable accommodation, asking that she be allowed to park
in the customer disabled parking spot. She told the Postmaster that
she was limited in her ability to walk, but failed to provide adequate
medical documentation to substantiate this limitation. On October 10,
2007, the Postmaster denied complainant's request.
On December 21, 2007, complainant filed a formal EEO complaint of
discrimination on the basis of disability (herniated discs L4 and L5),
when:1
1. On September 7, 2007, she received a Notice of 7-Day Suspension
pertaining to an incident that occurred on August 8, 2007, which was
subsequently reduced to a Letter of Warning; and
2. Since on or about August 8, 2007, she has not been reasonably
accommodated with a parking space.
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 but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged. Complainant now appeals to
the Commission.
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").
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation
Act, where the agency denies that its decisions were motivated
by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) he is an
"individual with a disability"; (2) he is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
Here, we will assume, but do not find, that complainant is an individual
with a disability as defined in the Rehabilitation Act. The agency
articulated legitimate, nondiscriminatory reasons for issuing complainant
a Notice of 7-Day Suspension. Specifically, complainant could not park
in the customer parking lot as per the union agreement; the disabled
parking spot in the customer lot had to be kept available for customers;
and complainant was told numerous times to park in another area that was
not much farther away than the disabled parking spot. When complainant
refused to follow directions, she was issued the Notice of 7-Day
Suspension, which was later reduced to a Letter of Warning.
Complainant must now establish by a preponderance of the evidence that
the agency's articulated legitimate, nondiscriminatory reasons were
pretext for discrimination. Complainant failed to offer evidence that
would establish that discriminatory animus towards her disability was
more likely than not the motivating factor in the Postmaster's decision
to issue her the Notice of 7-Day Suspension. Therefore, complainant
failed to establish pretext.
Reasonable Accommodation
With regard to her reasonable accommodation claim, in accordance with
the Rehabilitation Act, a qualified individual with a disability is
entitled to reasonable accommodation to enable them to perform the
essential functions of their positions, or to enjoy equal benefits
and privileges of employment. See 29 C.F.R � 1630.2(o)(1); see also
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (ADA) at 2-3 (March 1, 1999).
An employer is permitted to ask an individual for documentation when the
individual requests a reasonable accommodation and the disability and/or
the need for accommodation is not obvious. Here, complainant failed to
produce medical documentation that would establish that her limitations
were related to the requested accommodation. While complainant
provided documentation that stated that she was limited in walking,
that documentation was written by complainant. The most recent medical
documentation from complainant's doctor did not state that complainant
was limited in walking, or that complainant had any other limitation that
would require the use of the customer disabled parking spot to perform
the essential functions of her position. Therefore, we find that the
agency did not fail to reasonably accommodate complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
finding of no discrimination, because a preponderance of the evidence
in the record does not establish that discrimination existed as alleged.
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
February 11, 2009
Date
1 Complainant's complaint included an additional claim that was dismissed
by the agency for untimely EEO Counselor contact. While complainant
did not directly raise this matter on appeal, we affirm the agency's
dismissal of this claim, as the alleged discriminatory act occurred on
July 17, 2007, and complainant did not contact an EEO Counselor until
September 11, 2007, which is beyond the 45 day time limit proscribed in
29 C.F.R. � 1614.105(a)(2).
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0120090393
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036