Appeal No. 01A05440
03-27-2003
Mary-Jean M. Petty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary-Jean M. Petty v. United States Postal Service
01A05440
03-27-03
.
Mary-Jean M. Petty,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05440
Agency No. 4-G-770-0254-99
Hearing No. 330-A0-8064X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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 following reasons, the Commission AFFIRMS
the agency's final order.
ISSUE
The issue herein is whether the agency discriminated against complainant
on the bases of race (Caucasian), sex (female), color (White), disability
(blind in one eye/monocular vision, asthma), or age (D.O.B. 5/22/50)
when she was terminated.<1>
BACKGROUND
During the relevant time, complainant, a probationary employee,
worked as a letter carrier at the agency's League City facility, in
League City, Texas. The record reflects that complainant attended the
standard training provided by the agency for newly hired letter carriers.
The agency required complainant to attend and pass driver's training.
When complainant failed to pass the driver's training, the agency provided
her with a Notice of Removal that same day. The record reveals that
complainant filed a formal EEO complaint thereafter.
Complainant identified two aspects to her complaint. She first asserted
that she requested a reasonable accommodation due to her monocular vision.
Specifically, complainant contended that, on several occasions, she
requested additional time to practice the driving course and familiarize
herself with the agency's right-handed vehicle. Secondly, complainant
averred that, due to there being fewer instructors than students, she was
given less training time than the other students and she was bypassed
for an attractive, younger, African-American female (the Student).<2>
Complainant testified that the instructor gave her only 15 minutes
of driving time before she was given a sealed envelope and sent to
the Downtown office where she was told that she had failed the driving
test and was being terminated. In contrast, the Student was given more
driving time and passed the driving test.
Complainant further testified that, since she was classified as a
disabled veteran, the agency required her to provide it with her current
Veterans Form DD214 (Veterans Form), which included all of her medical
documentation. Although complainant went to the agency's medical unit
for her physical, the Postmaster in the League City facility asked her
for additional information on her veterans status and discussed each of
her medical conditions with her in great detail. Complainant contended
that, during this discussion with the Postmaster, another selectee (the
Selectee) was present. The Selectee stated that he and complainant
were in the Postmaster's office when the Postmaster began to question
complainant with respect to her �disability� form. The Selectee stated
that he then discontinued listening to the Postmaster's and complainant's
discussion and directed his attention to his own folder.
With respect to her disability, complainant testified that she needed
to learn to adapt to driving a right-hand vehicle due to her monocular
vision. She asserted that she drove heavy vehicles in the military,
even after becoming sight-impaired. Complainant indicated that her asthma
was controlled with medication.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race, color, or sex discrimination because, while complainant
was terminated after failing her driving test, other individuals not in
complainant's protected groups were also terminated when they failed the
test. The AJ also determined that complainant failed to establish a prima
facie case of age discrimination because the agency failed individuals
who were significantly younger than complainant. The AJ further found
that complainant failed to show that the instructor who was assigned to
complainant was the same instructor who showed favoritism to the Student.
With respect to complainant's claim of disability discrimination, the
AJ concluded that complainant failed to establish a prima facie case
because she failed to show that her condition substantially limited a
major life activity or that she was regarded as disabled; therefore,
the agency could not be found to have discriminated against complainant
because she was not covered by the Rehabilitation Act. The AJ noted that
the agency lacked a mechanism for an employee to request an accommodation
during the testing or training process. The AJ ultimately concluded
that complainant failed to establish discrimination on any of the
alleged bases. The agency's final action implemented the AJ's decision.
On appeal, complainant contends, among other things, that the AJ erred
when: (1) she failed to find a prima facie case of race, color, or sex
discrimination despite a clear comparison; (2) she failed to consider
the preferential training that the Student received in order to pass the
test; (3) she failed to find complainant substantially limited in the
major life activity of seeing; and (4) she failed to understand the
significance of the right-handed vehicles with their extra mirrors on
complainant's ability to adapt. The agency makes no statement on appeal.
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.
Reasonable Accommodation
As a threshold matter, a complainant alleging that she was subjected to
disability-based discrimination must establish that she is an "individual
with a disability" within the meaning of the Rehabilitation Act.
An "individual with a disability" is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. 29
C.F.R. 1630.2(i). The determination as to whether an individual has
an impairment that substantially limits a major life activity is made
on a case by case basis. See Bragdon v. Abbot, 524 U.S. 624 (1998);
Interpretive Guidance on Title I of the Americans with Disabilities
Act, Appendix to 29 C.F.R. 1630 (Interpretive Guidance) at 1630.2(j).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner, or duration under which an individual can perform
a major life activity, as compared to the average person in the general
population. See Interpretive Guidance, 1630.2(j).
Although complainant listed asthma as one of her disabilities, she fails
to identify any major life activity in which she is substantially limited
due to her condition.<3> Under the Rehabilitation Act, complainant cannot
be considered an individual with a disability per-se, simply because
she has been diagnosed with a certain condition. See Sutton v. United
Airlines, 527 U.S. 471, 483 (1999); Albertson's, Inc. v. Kirkinburg,
527 U.S. 555, 565-566 (1999); Murphy v. United Parcel Service, 527
U.S. 516, 521-523 (1999). Accordingly, we find that complainant has
failed to establish that her asthma is substantially limiting in a major
life activity, that she has a record of such an impairment with respect
to asthma, or that she is regarded as having such an impairment due to
her asthma.
The Commission further finds insufficient evidence in the record to
support a finding that complainant's monocular vision is a disability
under the Rehabilitation Act, that is, complainant does not have
an impairment which substantially limits a major life activity.
Complainant asserted that she is limited in the major life activity
of seeing. Ordinarily monocular vision would be a physiological
condition that would substantially limit an individual's ability to
see, but individuals with monocular vision, like others claiming
coverage under the Rehabilitation Act, must offer evidence that
they are substantially limited. Albertson's, 527 U.S. at 564, 567.
In addition, the Commission must consider any mitigating measures
�both positive and negative . . . when judging whether [complainant]
is �substantially limited.'� Id. at 565-566 (requiring analysis of
substantial limitation for individual with monocular vision). In the
present case, complainant offered no evidence of limitations in peripheral
vision and depth perception. We therefore determine that complainant
is not substantially limited in the major life activity of seeing.
Complainant cannot show that she had a record of a disability.
The Veterans Form states that complainant had 20/20 vision in one eye
and 20/800 vision in the other eye. The medical records do not reveal,
however, that complainant was substantially limited in the major life
activity of seeing, only that she had �poor vision.� Therefore, we find
that the record contains insufficient evidence that complainant had a
record of disability.
There is insufficient evidence to indicate that the agency regarded
complainant as substantially limited in the major life activity of seeing.
Complainant argued that, because she is a disabled veteran, the agency
regarded her as disabled. We note, however, that complainant's veterans
status does not provide a clear showing that the agency regarded her
as disabled. The record reflects that the Postmaster sent complainant
for standard training and a driving test, and the agency instructors
provided complainant with such. These actions are incompatible with
complainant's assertion that the Postmaster or instructors regarded
complainant as substantially limited in the major life activity of seeing.
Furthermore, complainant's instructor testified that he had no knowledge
of complainant's disability. We therefore find that there is insufficient
evidence to conclude that the agency regarded complainant as substantially
limited in the major life activity of seeing.<4>
In sum, the Commission finds that complainant has not shown that she is
an individual with a disability within the meaning of the Rehabilitation
Act. Therefore, we do not need to further examine her claim regarding
reasonable accommodation.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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; 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. 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. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of race, color, sex and age discrimination.
Therefore, the burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Here, the agency states that
complainant was issued a Notice of Termination because she failed the
driver's test. The record reveals that, of the five employees who
were trained and tested during the relevant session, three failed and
two passed.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the complainant to demonstrate that the
agency's articulated reason was pretext for discrimination. Complainant
can do this either by showing that a discriminatory reason more likely
motivated the agency, or that the agency's proffered explanation is
unworthy of credence. Burdine at 253. Complainant contended that she
failed her driving test because she did not receive as much training
as the Student. In order to be considered similarly situated, the
person with whom the complainant is comparing herself must be similar in
substantially all aspects, so that it would be expected that they would
be treated in the same manner. Murray v. Thistledown Racing Club, Inc.,
770 F.2d 63, 68 (6th Cir. 1985); Majahad v. Department of Labor, 915
F. Supp. 499 (D.C. MA 1996) (in order to establish disparate treatment,
comparators to the probationary complainant were other probationary
employees). Here, the instructor who trained the Student was not
the same instructor who trained complainant. As such, the identified
Student cannot be considered similarly situated to complainant, and is
an improper comparator. Although complainant argued that the instructors
showed favoritism to the Student because of her characteristics, we find
that complainant failed to present sufficient evidence to show that any
of the agency's actions were motivated by discriminatory animus toward
complainant's race, color, sex or age.
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.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____03-27-03______________
Date
1 Initially, the agency identified two issues in complainant's complaint,
including whether the agency discriminated against complainant when: (1)
the Postmaster required her to submit confidential medical documentation;
and (2) she was terminated. During a pre-hearing conference, the parties
identified the issue as stated above.
2 Both complainant and another selectee testified that the Student
arrived late to the training, and agency officials allowed her to train
despite their previous statements that students who arrived late would
be rescheduled.
3 We note that complainant testified that her asthma is under �good
control� with medication.
4 Complainant testified that the Postmaster maintained her confidential
medical documentation, apparently the Veterans Form, and openly discussed
her medical history in front of the Selectee. The Commission is troubled
by the Postmaster's in-depth questioning of complainant regarding
medical conditions, and his doing so in front of the Selectee. We note,
however, that during a pre-hearing conference, the parties agreed on the
issue to be addressed at the hearing, and said issue did not include
the Postmaster's questioning of complainant or his discussion of her
medical history. We remind the agency of its obligation to follow
the Commission's guidance on medical inquiries and confidentiality.
See Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act
(July 27, 2000); Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations Under the Americans with Disabilities
Act (October 10, 1995).