0120091875
07-01-2009
Marlin Wise, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marlin Wise,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091875
Agency No. 4A-070-0194-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 27, 2009 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.
During the period at issue, complainant was employed as a Sales & Service
Distribution Associate, PS-05, at the agency's Ironbound Station in
Newark, New Jersey.
On October 20, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the basis of disability (heart/asthma) when:
on July 24, 2007, she was sent home and told there was no work available
within her medical restrictions.
The record reflects that in 1992, complainant was diagnosed with chronic
tendonitis, and subsequently requested permanent light duty by letter
dated May 5, 2001, as a result of having been diagnosed with Atrial
Fibrillation and asthma. On May 18, 2001, a named Manager, Customer
Services Operations requested a Fitness-for-Duty (FFD) examination
for complainant. The record further reflects that following her FFD,
complainant was restricted to no bending, stooping, twisting, climbing,
kneeling, squatting; and no lifting, pushing or pulling over 5 pounds.
The record reflects that complainant was scheduled for another FFD
examination on March 30, 2007 to determine if she was capable of
performing the requirements of her job. Following the March 30, 2007
FFD examination, complainant's limitations continued to be no bending,
stooping, twisting, climbing, kneeling, and squatting; and no lifting,
pushing or pulling over 5 pounds.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. However, complainant subsequently withdrew her
request. Consequently, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
In its February 27, 2009 final decision, the agency found that complainant
did not establish a prima facie case of disability discrimination.1 The
agency further found that assuming, arguendo, complainant established
a prima facie case of disability discrimination, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.
Complainant's manager (M1) stated that he notified complainant by letter
dated July 27, 2007 that the medical information provided by the agency
physician in accordance with her physician restricted her duties to no
lifting, pushing or pulling over 5 pounds, no bending, stooping, twisting,
climbing, kneeling, squatting and rated her as a "high risk" employee
who was unable to perform the basic job requirements. M1 stated that
he also notified complainant that when work became available, she would
be notified. M1 stated that while he was detailed to another office,
complainant was sent for a FFD on March 30, 2007. M1 further stated that
after he returned to the Ironbound Station, he reviewed complainant's FFD
documentation and "found that she was doing work outside her restrictions
and didn't want to be liable for any thing that might happen. In the
meantime carrier work volume was down 20%, so I gave that work back to the
carriers to try to keep them gainfully employed for 8 hours." M1 also
stated that the mark-up was taken over by the Plant through automation
that left complainant "without any work here in the station that fit
her restrictions after keeping her gainfully employed for 8 years."
Further, M1 stated that the "postal policy states that light duty
employees are to be given available work within their restrictions and
they are not to find work for these employees. Unfortunately, there
isn't any work here that comes within the guidelines of [complainant's]
restrictions." M1 stated before sending complainant home "we emailed
every office in Newark, 7 of them, and asked if they had any work
available in their stations for her that fit her restrictions. I received
a response from each office stating that they had no work available for
her."
Complainant's immediate supervisor (S1) stated that prior to her August
2005 arrival at the Ironbound Station, complainant was given duties
within her restrictions. S1 further stated that complainant's duties
"continued until various changes pertaining to automation gradually ended
the availability of this work. She was doing forwarding mail (which is
a Carrier function), but this job was returned to the Carriers so that
they had a full day's work. The "mark-ups" letters to be returned to
sender has been taken over by the "PARS" automation and the "mark-up"
flats and parcels are being done by bidded clerks to give them an 8
hour day." S1 stated that on July 24, 2007, complainant was sent home
because there was "no work available within her medical restrictions."
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Further, to the extent that complainant is alleging that the agency
failed to provide her with a reasonable accommodation, we note that 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. 29 C.F.R. �� 1630.2(o), 1630.2(p). Here,
we find complainant was sent home on July 24, 2007 because there was no
work available within her restrictions. Therefore, we concur with the
agency's finding that complainant failed to show that agency violated
the Rehabilitation Act.
On appeal, complainant has provided no persuasive arguments indicating
any improprieties in the agency's findings. Therefore, after a review of
the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.
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
July 1, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
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0120091875
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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