0120091983
06-11-2010
Melie D. Southerland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Reference #: 0120091983
Melie D. Southerland
8133 W Glenn Dr
Glendale, AZ 85303
Reference #: 0120091983
U.S. Postal Service (Pacific)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
Melie D. Southerland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120091983
Hearing Nos. 540-2008-00040X; 540-2009-00028X
Agency Nos. 1E-851-0004-08; 1E-851-0004-08
DECISION
On April 10, 2009, Complainant filed an appeal from the Agency's March 25, 2009 final order concerning his equal employment opportunity (EEO) complaint alleging 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 deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk at the Agency's West Valley Logistics and Distribution Center (WVLDC) in Phoenix, Arizona. His position was abolished, and he was unsuccessful in bidding for a position which would have enabled him to remain at the WVLDC. He was awarded a bid assignment at the Phoenix Processing & Distribution Center (PPDC). Complainant did not want to be transferred to the PPDC because it was considerably further from his home in Glendale, Arizona, and Complainant was accustomed to biking back and forth to work everyday. A letter from Complainant's doctor states that the Complainant's biking routine helps him avoid recurring symptoms of agoraphobia, or panic disorder, from which he has been suffering since the mid nineties.
Complainant submitted a request to remain at the WVLDC to the District Reasonable Accommodation Committee (DRAC). Complainant failed to appear for a meeting scheduled for February 15, 2007. The meeting was rescheduled for March 8, 2007, and Complainant was 45 minutes late for his telephonic appearance.
Complainant submitted a letter dated March 7, 2007 and signed by his doctor's office manager on his doctor's behalf to the DRAC. The letter stated that Complainant needed to remain in his current work station so that he could continue to engage in a highly specific workout routine involving biking. The letter stated that Complainant was diagnosed with Panic Disorder and that at this time, switching work stations and trying to find comparable exercise types would doom him to failure. The letter did not give any specific description of how much biking Complainant needed to do each day nor did it explain, in any detail, why he could not substitute another form of exercise.
The DRAC found the medical evidence insufficient because it did not identify permanent medical restrictions that would prohibit him from performing the essential functions of his job. In the absence of this medical documentation, the DRAC declined to evaluate the case but advised Complainant that it would reopen his case if he provided documentation. Complainant did not respond to the DRAC's March request or to its follow up request for additional information in June 2007.
In April 2007, Complainant received a letter inquiring about his duty status because he failed to report to the PPDC for work on March 31, 2007. He was issued a letter of warning in February 2008 and a seven day suspension in June 2008 - both disciplinary actions were related to his failure to appear for work and poor attendance. Several of his requests for leave under the Family Medical Leave Act were denied because of his failure to meet the 1250 work hour eligibility requirements.
Complainant filed an formal EEO complaint which was later amended and included allegations that, on the basis of disability and in reprisal for prior protected activity, the DRAC subjected him to a hostile work environment when it denied him reasonable accommodation and then management disciplined him for his absenteeism and tardiness. He also alleged that he was discriminated against on the bases of race and sex when another employee was placed on the LCU sorter machine causing him to lose pay.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case reviewed both parties' motions for summary judgment; determined that the complaint did not warrant a hearing; and issued a decision without a hearing on March 17, 2009.
In her decision, the AJ found that Complainant failed to prove he was an individual with a disability because he failed to identify a major life activity in which he was substantially limited. She also found that he failed to establish a prima facie case of retaliation because rather than proffer evidence of a causal connection between his prior protected activity and the adverse treatment described above, all he offered was "speculation." The AJ also found that the reason another individual was temporarily assigned to work his machine was because he was tardy and not because of animus against his protected bases. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact in dispute. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Upon review of this record, we find that the AJ correctly determined that there were no genuine issues of material fact in dispute in regard to Complainant's request for reasonable accommodation. In reaching this conclusion, we find that Complainant did not submit evidence from which a reasonable fact finder could conclude that he was an individual with a disability, a prerequisite to proving he was denied reasonable accommodation. Although Complainant identified his impairment, he did not identify in which, if any, major life activity he was currently, or ever had been, substantially limited.
Assuming arguendo that Complainant was an individual with a disability, we find that the issuance of a decision without a hearing was still appropriate. In reaching this finding, we find that Complainant's specific request was to remain working at the WVLDC, and he identified an employee who was allowed to remain there. According to the Agency, this employee had seniority over Complainant. To the extent that Complainant was requesting that he be given the senior employee's position, Complainant did not establish that his request for accommodation was reasonable.
In U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (April 29, 2002), the Supreme Court held that it was unreasonable, absent "special circumstances," for an employer to provide an accommodation which conflicts with the terms of a seniority system. Seniority systems governing job placement give employees expectations of consistent, uniform treatment - expectations that would be undermined if employers had to make the type of individualized, case-by-case assessment required by the reasonable accommodation process.
However, if there are special circumstances that undermine the employees' expectations of consistent, uniform treatment, it may be a reasonable accommodation, absent undue hardship, to reassign an employee despite the existence of a seniority system. For example, special circumstances may exist where an employer retains the right to alter the seniority system unilaterally, and has exercised that right fairly frequently, thereby lowering employee expectations in the seniority system. In this circumstance, one more exception (i.e., providing the reassignment to an employee with a disability) may not make a difference. Alternatively, a seniority system may contain exceptions, such that one more exception is unlikely to matter. Another possibility is that a seniority system might contain procedures for making exceptions, thus suggesting to employees that seniority does not automatically guarantee access to a specific job. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 31 (as revised Oct. 17, 2002).
We find that Complainant did not prove that he had more seniority over the employee he identified. He also did not present evidence from which a reasonable fact finder could find that special circumstances operated to undermine Agency Clerks' of uniform and consistent treatment in accordance with the collective bargaining agreement. Further, to the extent Complainant is arguing that he should have simply been allowed to remain at the WVLDC or be reassigned back to the WVLDC from the PPDC, we find that to be a request for reasonable accommodation. However, Complainant's bid job was abolished so he bears the burden of proving that there was a vacant, funded position for which he which he was qualified and to which he could have been reassigned at the WVLDC. Complainant did not present evidence from which a reasonable fact finder could conclude such a position existed.
Finally, concerning the discipline he received for being absent and tardy, we agree with the AJ that there is simply no evidence to suggest Complainant's attendance problems were not the real reasons for the Agency's disciplinary actions. We acknowledge Complainant's argument that his attendance problems were the result of not being accommodated, but as discussed above, under the facts and circumstances of this complaint, we do not find the Agency liable for failing to accommodate Complainant.1
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 final order.
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
__________________
Date
01 & 07 Merits Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of Federal Operations Catherine McNamara, Acting Dir., Appellate Review Program FROM: Amelia Demopulos, Attorney 6/11/10 Joel Cavicchia, Supervisor Catherine McNamara, Division Director Appeal Number(s) 0120091983 Agency Number(s) 1E851000408 Hearing Number(s) 540200900028X Complainant(s): Melie D. Southerland Agency: USPS (PAC) Decision: Affirm FAO Statute(s) Alleged Title VII and Rehab Act Basis(es) Alleged GM - Sex/M, HM - Disability/Mental, OR - Reprisal/Reprisal, and RB - Race/Black Issue(s) Alleged A5, D5, D7, and H1 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Merits Decision Codes X 4A - Merits decision
? 4B - OFO found discrimination
List basis code(s):__________________
List issue code(s):__________________
? Comp. damages (C3) awarded?
x 4C - OFO found no discrimination/made no
determination re: discrimination
? 4E - Agency found discrimination
x 4F - Agency found no discrimination
x 4H - OFO affirmed Agency
? 4I - OFO reversed Agency
? 4J - OFO modified Agency (NOTE: if affirmed
in part and reversed in part, then (3L)
code required if at least one issue is
remanded)
? 3L - OFO remanded PART of Agency's merits
Decision (NOTE: Do not use 3L with a
4B code)
? 3P - Adverse inference
? 4K - AJ found discrimination
x 4L - AJ found no discrimination
? 4M - AJ made no finding x 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
x 4T - AJ issued Summary Judgment decision
x 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages-APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to Agency for remedies
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Imbedded Procedural Issues Codes Merit Affirmed Merit Reversed Merit Modified ? Procedural Affirmed = A
? Procedural Reversed = B
? Procedural Modified = C ? Procedural Affirmed = D
? Procedural Reversed = E
? Procedural Modified = F ? Procedural Affirmed = G
? Procedural Reversed = H
? Procedural Modified = I
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Melie D. Southerland USPS (PAC) 0120091983
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken n/a
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 0120034200 + 05 Procedural - harassment 0120041668 + 05 Procedural - harassment 0120071281 breach
Class Action Cases
Appeal No. ORADS Status Related (Yes/No) Actions Taken
Amelia Demopulos June 11, 2010
Attorney Date
1 In the future, if Complainant requests reasonable accommodation for a shorter commute, the Agency's request for medical documentation should relate to whether his impairment substantially limits his ability to perform a major life activity and how and why the requested accommodation will enable him to "get" to work, especially if there remains no evidence that he has restrictions which affect his ability to perform the essential functions of his job once he arrives onsite. It is the Commission's position that a request for a shorter commuting time due to a disability triggers an Agency's responsibility under the Rehabilitation Act. Kubik v. Department of Transportation, EEOC Appeal 01973801 (July 9, 2001).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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