01994945
09-26-2002
Mary O'Malley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary O'Malley v. United States Postal Service
01994945
09-26-02
.
Mary O'Malley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994945
Agency Nos. 1C-191-1036-95, 1C-191-1192-96, 1C-191-1200-96, 1C-191-0110-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791, and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
633a. The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
BACKGROUND
The agency employed complainant as a Mailhandler at its processing
and distribution center in Philadelphia, Pennsylvania. She sought
EEO counseling and subsequently filed four formal complaints, the most
recent of which she filed on May 12, 1997. She claimed that the agency
discriminated against her on the bases of race (Caucasian), national
origin (Lithuanian), sex, religion (Catholic), color (white), disability
(residual effects of traumatic injury suffered on October 23, 1994),
age (D.O.B. June 14, 1947), and reprisal for prior EEO activity by:
Failing to accommodate her disability between October 1994 and June 1996;
Requiring her to submit to a psychiatric evaluation as part of a
fitness-for-duty examination (FFDE) on June 4, 1996;
Placing her in non-pay status on June 18, 1996; and
Issuing her a notice of removal on February 24, 1997.
The agency consolidated the complaints in a single investigation.
At the conclusion of the investigation, the agency informed complainant
of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a FAD based on the investigative
record. Complainant initially requested a hearing, but on October 28,
1998, she withdrew her hearing request and asked to receive a FAD.
In its FAD, the agency found that complainant had failed to establish
a prima facie case of discrimination on any basis. It also found that
complainant was not eligible for the protection of the Rehabilitation Act,
because she had not shown that her condition substantially limited any
of her major life activities. In the alternative, the agency determined
that none of the reasons that it gave for the various personnel
actions at issue in this appeal were pretextual. This appeal followed.
On appeal, complainant challenges the agency's findings on the merits.
She maintains that she was covered by the Rehabilitation Act and that the
agency failed to provide her with a reasonable accommodation. She also
contends that there was no justification for requiring her to submit to
a psychiatric FFDE.
To bring a claim of disability discrimination, complainant must first
establish that she is disabled within the meaning of the Rehabilitation
Act.<1> An individual with a disability is one who has, has a record
of, or is regarded as having a physical impairment that substantially
limits one or more of her major life activities. 29 C.F.R. � 1630.2(g).
The Commission will assume that complainant was an individual with a
disability during the relevant time frame in order to resolve this case.
DISCUSSION
FAILURE TO ACCOMMODATE
Complainant contends on appeal that her accommodations were inadequate.
She maintains that, between October and November of 1994 and June of 1996,
the agency had required her to undertake tasks that were outside of the
restrictions imposed by her physicians,<2> and continually ignored her
accommodation requests. She alleged, in particular, that:
On October 24, 1994, she was assigned to sweep behind machines; catch
mail; and throw heavy magazines into an overhead container;
On October 25, 1994, complainant was required to lift big sacks of
envelopes and place them on a flat truck;
On October 28, 1994, she attempted to see the medical officer about her
condition, but the medical officer refused to see her and forced her to
return to the work area, where she was again required to throw magazines
into the overhead container;
On October 30, 1994, she was assigned to do work which required walking
across the floor rather than answering the telephone, after being led
to believe that she would only have to answer the telephone;
On November 4. 1994, she was placed in a cubicle without a wheelchair and
forced to drag a metal chair across the floor when using the restroom,
as she could not walk without support; and
Between May and June 1996, she was required to lift big stacks of
envelopes onto a flat truck and break down 70-80 pound sacks of mail
while the agency continued to ignore or deny her requests for reasonable
accommodation.
Affidavit (Aff.) A, pp. 1-2 & attachment (att.) 3; aff. B, pp. 1-3, 5 &
att. 7A.
Complainant must establish that she can, with or without reasonable
accommodation, perform the essential functions of the position in
question. 29 C.F.R. � 1630.2(m). Immediately after the accident, the
agency reassigned complainant to a limited duty position. Supervisor 2
stated that the functions assigned to complainant included rewrapping
torn mail, putting letters and flats on trays, verifying priority mail,
and performing other simple housekeeping functions.<3>
At issue is the nature, extent, and effectiveness, i.e., the
�reasonableness� of the accommodation that the agency provided,
namely, whether any of the supervisors or managers named in the
complaint gave complainant work that exceeded her medical restrictions.
Complainant claims that they did. Manager 1 responded that complainant
was not required to do any pushing, pulling, or lifting in excess of
her limitations, and that her work restrictions were honored. Aff. H.
Supervisor 1 stated that complainant was never required to lift anything
heavier than a cardboard tray, and that she herself would bring letters
to complainant in a cart and would remove the trays when they were full.
Aff. F. Supervisor 2, who gave the most extensive affidavit, stated that
he was aware of complainant's 15-pound limitation on lifting, and that as
a result of that and the other limitations, complainant was required only
to �tray up letters and flats� from a seated position. He also stated that
while complainant was in her limited-duty position, a regular clerk was
provided in order to place filled trays and tubs into large containers.
Supervisor 2 also reiterated that complainant was never required to do
any work outside of her limited duty restrictions. Aff. J.
Supervisor 2's assessment of the situation was corroborated by Supervisor
3, who stated that complainant was required to sit in a cubicle and sort
letters into trays. Supervisor 3 also noted that she assigned complainant
to the function of sweeping parcels into bins, and that those parcels
weighed less than a pound each. Aff. K. As to complainant's claim that
the agency's medical officer refused to see her, the medical officer
denied that this was the case. Rather, he stated that under the terms
of a policy protocol document, the medical officer could not provide
primary medical attention to employees who were under the care of their
own physician, as complainant was at the time. Aff. I & att. 1 thereto.
Finally, with respect to her allegation that the agency failed to provide
her with a wheelchair, complainant has not presented any evidence to
show that she needed a wheelchair in order to perform the essential
functions of her position within her medical restrictions during the
relevant time frame. See Cass v. Department of Veterans Affairs, EEOC
Appeal No. 0198255 (February 17, 2000) (Equipment cannot be of a personal
nature, such as eye glasses or wheelchairs, but must be directly related
to the performance of the job).
Complainant has not provided any documents or sworn statements which
contradict the statements given by the various supervisors and managers,
or which undermine their credibility as witnesses.
Accordingly, we find that the agency reasonably accommodated her between
October 1994 and June 1996.
FITNESS FOR DUTY EXAMINATION
On June 4, 1996, the agency's medical officer ordered complainant to
undertake a psychiatric FFDE as a condition of continued employment.
Aff. B, pp. 1, 8; Aff. H & att. 1C thereto. Employers can require
their employees to submit to FFDE's under very limited circumstances.
Generally, an employer may only seek information about an employee's
medical condition when it is job-related and consistent with business
necessity. Enforcement Guidance on Disability-Related Inquiries and
Medical Examination of Employees Under the Americans with Disabilities Act
(July 27, 2000) (hereinafter �July 2000 Guidance�), at p. 3, Question 5.
This means that the employer must have a reasonable belief based on
objective evidence that an employee will be unable to perform the
essential functions of her job because of a medical condition, or the
employee will pose a direct threat because of a medical condition. Id.
Objective evidence is reliable information, either directly observed or
provided by a credible third party, that an employee may have or has a
medical condition that will interfere with his or her ability to perform
essential functions of the job or will result in a direct threat.
Clark v. United States Postal Service, EEOC Appeal No. 01992682
(November 21, 2001). Where the employer forms such a belief, its
disability-related medical examinations are job-related and consistent
with business necessity. Id. We emphasize that FFDE's cannot be used to
discipline employees where disciplinary action is not warranted. See id.
In Clark, the agency sent the employee in question for an FFDE after
observing what was later characterized as �obsessive-compulsive� behavior.
The employee was observed carrying a notebook, keeping written records
of infractions of agency rules by his co-workers, and reporting those
infractions to his supervisors. The agency ordered the employee
to report for a FFDE after numerous complaints by those co-workers.
On appeal, the Commission found that the agency failed to demonstrate
that the FFDE was job-related and consistent with business necessity.
No one complained about the employee's job performance, and his behavior,
while intensely annoying, was not such that he posed a direct threat.
There was no evidence in the record that the employee was physically
violent or that he would do harm.
This case differs from Clark in that crucial respect. The medical officer
ordered the FFDE only after he received a detailed, three-page memorandum
from Manager 2 describing various incidents involving complainant
that occurred between October 1994 and May 1996, which indicated that
complainant had been exhibiting changes in her personality and behavior
after her accident in October 1994. Collectively, these incidents led
Manager 2 and other officials to believe that complainant's personality
changes were due to a medical condition, and that those personality
changes caused complainant to engage in behavior that could have resulted
in significant harm to herself. Ex. 3. The incidents are identified
somewhat chronologically as follows:
Supervisor 2 stated that, before her injury, complainant was considered
a prize employee, but that afterward, her personality had changed to
the point where she had become, �dishonest, untrustworty, vulgar, and
out of control,� and that, �her whole attitude toward management and
her co-workers went from good to bad.� Aff. J.
Manager 2 stated that complainant had complained numerous times on
unspecified dates that supervisors lost her paperwork on purpose, and
that when he investigated those charges, he found that they lacked merit.
Ex. 3.
On an unspecified date in March of 1995, a tour supervisor informed
Manager 2 that complainant was upset that she did not get a workers
compensation claim form. He stated that he twice asked complainant how
she was, but that she did not respond. When Manager 2 asked complainant
if she was having any problems, she told him that the supervisors were
all liars. Ex. 3.
Later that evening, Manager 2 received a telephone call from a postal
police sergeant, who told him that complainant came into his office and
asked him to have manager 2 and another manager removed because they were
harassing her. On another, unspecified date, complainant again contacted
the postal police and this time asked them to remove her immediate
supervisor at the time, supervisor 2, also for harassing her. On both
occasions, what complainant characterized as �harassment� was actually
Manager 2 attempting to give complainant some workers compensation forms
to fill out. Ex. 3A.
On May 18, 1995, an acting supervisor reported to Manager 2 that
complainant had been saying that another supervisor tried to get her hurt.
Ex. 3A.
On December 12, 1995, Supervisor 1 observed complainant sitting on
equipment and had to tell her several times to get off because it was
unsafe. Ex. 3A.
On one or more unspecified dates, Manager 2 and several others observed
complainant walking in front of moving tractors. Ex. 3A.
Manager 2 stated that complainant had several violent outbursts of temper,
most recently on April 27, 1996, when she was screaming in his face.
Ex. 3A-3B.
On May 2, 1996, on the basis of the foregoing incidents, Manager 2
submitted the memorandum supporting the FFDE request to the medical
officer. He stated in the memorandum that he was not sure whether
complainant had problems needing medical attention. Ex. 3B. The
memorandum, as well as Supervisor 2's affidavit, clearly show that,
because complainant had previously injured herself by falling onto
a conveyor belt, the agency had reason to believe that she could be
injured again if she sat on equipment or walked out in front of moving
tractors. The Commission therefore finds that, under the unique set
of circumstances presented in this case, the agency had a reasonable
belief that complainant's actions may have posed a direct threat to her
personal safety, and thus, was fully justified in requiring complainant
to submit to a psychiatric FFDE. Consequently, the FFDE was job-related
and consistent with business necessity.
PLACEMENT IN OFF-DUTY STATUS
Complainant stated in her affidavit that, when she refused to undergo
a psychiatric examination, as requested by the medical officer, she was
placed in non-pay status as not fit for duty, and was informed that she
would not be permitted to return to active status until she obtained the
necessary medical certification. Aff. B, p. 1. To prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
As a first step, she must generally establish a prima facie case by
demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated a legitimate and nondiscriminatory reason for
placing complainant in non-pay status. See United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The medical
officer stated that, when he saw complainant on June 4, 1996, he needed
a psychiatric evaluation in order to complete his assessment of whether
or not complainant was fit for duty, and that complainant never provided
the psychiatric assessment that he needed to complete the FFDE. Aff. I.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). The need
for complainant to undergo a psychiatric evaluation in June of 1996 has
been documented as a matter of record. The medical officer's affidavit
indicates that complainant was placed in a non-pay status because she
refused to submit to the examination. Although complainant claims that
she had been discriminated against on multiple bases, she has not rebutted
the medical officer's sworn statement. She even admitted that, as of May
12, 1997, almost a year later, she still had not seen a psychiatrist.
Aff. B, p. 9. Accordingly, we find that the agency acted within the
scope of its discretion and did not discriminate against complainant on
any basis when it placed her in non-pay status on June 18, 1996.
NOTICE OF REMOVAL
Complainant claimed that, on February 24, 1997, she received a notice
from Supervisor 3 dated February 18th. Aff. C, p. 4. This notice stated:
You are hereby notified that you will be removed from the [agency] thirty
days from receipt of this notice. The reasons for this action are: failure
to meet the attendance requirements / failure to report as scheduled,
failure to follow instruction - AWOL. On June 4, 1996, you submitted to a
fitness for duty examination and you were found not fit for duty pending
clearance by an independent psychiatric consultant. You were sent two
certified letters dated July 26, 1996, and August 8, 1996. Both letters
instructed you to submit acceptable evidence to support your absence.
The letters further instructed that if, �within five days of your
receipt of this letter, you do not return to duty, submit satisfactory
explanation of your failure to do so, supported by acceptable evidence,
or resign, action will be taken to remove you from the rolls. . . This
is not a notice of your removal, or separation from the Postal Service,
but a notice of our proposal to take such action if you do not comply
with these instructions (emphasis added). Additionally, in the letter
dated July 26, 1998, you were also reminded of the instructions given
to you by [the medical officer] to secure clearance by an independent
psychiatric consultant, and that it was your responsibility to provide
medical documentation to substantiate your absence. . . To date, you
have failed to return to duty and have failed to furnish documentation
to support your continued absence. This failure to follow instructions
has resulted in your absence from June 4, 1996, to the present, being
charged to AWOL.
Aff. B, att. 1. Complainant can establish a prima facie case of
discrimination under the McDonnell Douglas framework by showing: that
she is a member of various protected groups; that she was qualified
for her position; that she was satisfying the normal requirements of
her position; that she was issued a notice of removal; and that she was
treated more harshly than similarly situated individuals outside of her
protected groups. Brown v. Department of Health and Human Services,
EEOC Appeal No. 01943729 (May 9, 1996) citing Flowers v. Crouch-Walker
Corp., 552 F.2d 1277, 1282 (7th Cir. 1977). In this case, complainant had
not been satisfying the normal requirements of her position in that she
had been absent from work for seven months.<4> We therefore find that
failed to establish a prima facie case of discrimination in connection
with the removal notice that she received in February 1997.
Moreover, even if complainant did establish a prima facie case, the
agency's reason for issuing the notice of proposed removal is fully
documented. In addition to the February 1997 notice of proposed removal,
the record includes a copy of the nearly identical memorandum dated
July 26, 1996, from Manager 2, which was referenced in the February
1997 notice. Aff. B, att. 3. The two notices clearly show that,
between June 1996 and February 1997, the agency had been trying to get
complainant to submit medical documentation to justify her extended
absence from work. In response to the February 1997 notice, complainant
submitted an extensive medical report from his orthopedic surgeon
dated February 28, 1997. This report did not include documentation
of a psychiatric examination. Nevertheless, as previously noted,
it does not appear that complainant was ever removed from the rolls,
notwithstanding that she never provided a psychiatrist's report. Thus,
as with the other issues in this case, complainant has not shown that the
agency's articulated reason for issuing the notice of proposed removal
was a pretext designed to hide a discriminatory animus.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
______09-26-02____________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2Complainant suffered head, neck, and back injuries when she fell onto a
conveyor belt on October 23, 1994. She was placed under restrictions
that included sedentary work, limited use of her arms, and lifting no
more than 15 pounds.
3Two distribution operations managers and three distribution operations
supervisors gave affidavits to the EEO investigator. These agency
officials will be identified by number in order to preserve their
anonymity.
4The notice of removal was actually a notice of proposed removal, which
indicated that a removal action would be initiated if complainant did
not provide the agency with the requested medical documentation within 5
days of receiving the notice. Although complainant contends in her appeal
brief that she had been terminated, the record contains no documentation
establishing that the removal had actually been carried out.