0120140316
05-11-2016
Miguelina S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Miguelina S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120140316
Hearing No. 530-2012-00224X
Agency No. 4C080001012
DECISION
On October 18, 2013, Complainant filed an appeal from the Agency's September 20, 2013, final decision concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant on the bases of sex (female), disability (right hand injury), age (55), and reprisal for prior protected EEO activity when, since on or around August 2011, Complainant was kept from available work and denied reasonable accommodations and; whether the Agency discriminated against her based on reprisal (filing the instant EEO complaint) when on October 20, 2011, Complainant was subject to a Pre-Disciplinary Interview (PDI), and on November 30, 2011, Complainant was issued a Notice of Removal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible City Carrier at the Agency's Pitman Post Office in Pitman, New Jersey. On September 10, 2005, Complainant suffered an on-the-job injury where she fractured her right thumb. Complainant was detailed to the District Office until 2007, when she returned to the Pitman location. Complainant worked on a modified assignment of carrying mail, with limitations of 10 to 20 pounds, until she injured her shoulder in July 2008. Complainant filed workers' compensation claims on July 5, 2008, and July 22, 2008, with the Department of Labor (DOL). Complainant periodically submitted a note from her doctor (DR1) stating that she was totally disabled and could not work.
Complainant stated that she and the Postmaster (PM) (male, unknown disability status, 59 years old) spoke off and on regarding her request for a reasonable accommodation. On or about November 30, 2010, Complainant provided a statement from DR1, who indicated that Complainant was limited to lifting, pushing and pulling no more than ten pounds; and needed to limit repetitive movement in her right hand to no more than four hours a day. On December 2, 2010, the Agency received updated medical information, which stated that Complainant could work up to four hours per day; could reach above her shoulders for two and a half hours and; had no standing restrictions. On December 6, 2010, PM offered Complainant a modified job assignment to case her assigned route up to two hours per day and carry her assigned route for two hours per day. Complainant rejected the offer stating that it was not within her medical restrictions. Complainant stated that she was requesting the use of a cart and provided another note from DR1, who stated that Complainant would always need a cart at her disposal.
Due to Complainant's lack of improvement and the lack of clear medical restrictions by DR1, DOL referred Complainant for a second opinion. Another physician (DR2) reviewed Complainant's medical file and performed an examination of Complainant. On February 21, 2011, DR2 provided a statement noting that Complainant had trouble with daily activities, such as yard work, carrying laundry and activities with children. DR2 also stated that Complainant could work a full eight-hour day, with significant limitations on the use of her right hand, and that these restrictions would be permanent. On April 21, 2011, DR2 provided an updated statement that Complainant was capable of working an eight-hour day, but with a four-hour restriction on use of her right hand.
From March 9, 2011, through April 11, 2011, Complainant was filmed doing various house and yard work for an investigation conducted by the Office of the Inspector General (OIG).2 The footage was reviewed by DR2, who stated on May 19, 2011, that the video was "quite enlightening," and that there was no reason why Complainant could not return to her full-time duties, without restrictions. DR2 provided an additional statement noting that Complainant was "extremely aggressive with the use of her right hand...without any signs of obvious pain or impairment." On June 10, 2011, DR2 issued a final report stating that Complainant no longer has a medical condition or disability as a result of her employment injury. On June 30, 2011, DOL notified Complainant that it was proposing the termination of her claim for medical and wage loss benefits based on DR2's statements. Complainant did not respond to the proposal and the termination of her benefits became effective on August 4, 2011.
Complainant stated that on July 14, 2011, PM denied her request to use a cart as an accommodation because the cart was too heavy. Complainant also stated that she was told that there was no work within her restrictions. In August 2011, Complainant returned to work and was in driving training.3 On August 11, 2011, Complainant provided a note from DR1, who wrote that she had a ten pound lifting restriction and a need for a cart.
On September 8, 2011, OIG investigators conducted an interview with Complainant to discuss the findings from the video, and DR2's statements after reviewing the video footage. Complainant stated to the investigators that she tried to go back to work but that the Agency had not offered her any job with restrictions. When the investigators showed Complainant the December 6, 2010, modified job offer, she retracted her statement and stated that her response had been tampered with. The investigators informed Complainant that her document was not tampered with. The investigators also noted that Complainant was seen in the video lifting 20-pound bags of dog food; doing "hard yard work" and; walking pit bulls. When Complainant was asked if she was concerned about sustaining injuries while walking pit bulls, who could pull hard on the leash; or why she did not tell DR2 the truth about her condition or improvements in her condition, she did not respond. The investigators asked Complainant if she wanted to watch the video and she declined.
On October 20, 2011, PM conducted a PDI with Complainant. PM informed her that the reason for the PDI was to provide Complainant an opportunity to respond to the OIG's report regarding the alleged fraud in her workers' compensation claim. During the PDI, Complainant stated that the OIG investigators did not allow her to view the videotape. After viewing the video, Complainant stated that she was just "cleaning up leaves." Complainant also stated that she spoke with PM in July 2011, regarding her request for light duty.
On November 30, 2011, PM issued Complainant a Notice of Removal for Improper Conduct, effective February 17, 2012. Specifically, PM found that Complainant had been evasive during the PDI and failed to clarify her actions; failed to notify the Agency or DOL of her improved medical condition and; failed to notify management of her improved condition and ability to return to work. PM also noted that he and Complainant did not speak in July regarding any light duty request. PM determined that Complainant's actions were in violation of the Agency's Standards of Conduct outlined in the Employee and Labor Relations Manual regarding an employee's obligation to be honest and ethical.4 Additionally, PM noted that Complainant's behavior violated a clause on the Injury Recurrence Form CA-2a, which provides that anyone who knowingly makes a "false statement, misrepresentation, concealment of fact or any other act of fraud to obtain compensation" under the Federal Employee Compensation Act would be subject to civil and administrative remedies.
On December 2, 2011, Complainant provided a statement from DR1, in support of her appeal of the termination of benefits. DR1 stated that he reviewed the video footage of Complainant and did not see her performing any activities that were outside of her limitations.
Complainant initiated EEO counseling on November 3, 2011, and on February 14, 2012, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (right hand injury), age (55), and reprisal for prior protected EEO activity when, since on or around August 2011, she was kept from available work and denied reasonable accommodations. Additionally, Complainant alleged that she was discriminated against based on reprisal (filing the instant EEO complaint) when on October 20, 2011, she was subject to a PDI and on November 30, 2011, she was issued a Notice of Removal.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission 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 the Agency subjected her to discrimination as alleged.
While the Agency noted that the medical information was conflicting, it determined that Complainant was an individual with a disability because she was substantially limited in her ability to perform manual tasks. However, the Agency found that she was not a qualified individual with a disability because it found that she could not perform the essential functions of her position, with or without an accommodation.
In regards to Complainant's claim that she was disparately treated when she was not allowed to work since August 2011, the Agency found that the following comparators were not similarly situated:
1. C1: Male, 54 years old, Prior EEO activity;
2. C2: Male, 45 years old, No Prior EEO activity;
3. C3: Female, 35 years old, No Prior EEO activity; and
4. C4: Female, 33 years old, Prior EEO activity.
While Complainant alleged that they were treated more favorably than she was because C1, C3, and C4 were able to use carts, the Agency found that Complainant had not shown that their situations were similar to hers. Additionally, the Agency noted that while Complainant was not limited in presenting comparator evidence to establish a prima facie case of discrimination, it found that she had not presented any evidence that afforded a sufficient basis from which to draw an inference of discrimination based on sex, age, race, or in reprisal for prior EEO activity.
The Agency also found that Complainant had not established a prima facie case of reprisal discrimination because she had not shown that PM was aware of her EEO activity or that there was a causal connection between the EEO activity and the PDI and removal. However, assuming, arguendo, that Complainant had established a prima facie case of discrimination based on sex, age, disability and in reprisal, the Agency found that PM articulated legitimate, non-discriminatory reasons for his actions. PM stated that when he offered Complainant a modified job assignment, she stated that she could not return to work without the use of a cart. PM stated that letting Complainant use a 35-pound cart would violate her ten-pound lifting restriction. Additionally, PM stated that he conducted the PDI and issued the Notice of Removal because Complainant had an obligation to notify the Agency of any improvement in her condition, which she did not do; and that the information contained in the OIG report indicated that she was capable of working.
The Agency then found that Complainant had not provided any evidence that the proffered reasons were pretext for discrimination. Accordingly, the Agency found that Complainant had not shown that the agency discriminated against her on bases of sex, age, disability, or in reprisal for prior EEO activity.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Failure to Provide Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an "individual with a disability," as defined by 29 C.F.R. � 1630.2(g); (2) she is a "qualified" individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
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 such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. � 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997).
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. 29 C.F.R. � 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id.
We will assume, without finding, that Complainant is an individual with a disability. However, we find that Complainant is not a qualified individual with a disability because she has not shown that she is able to perform the essential functions of the job, with or without an accommodation. While Complainant argues that she can deliver the mail with the accommodation of a cart, PM stated that Complainant cannot use a cart because the carts weigh 35 pounds, which is beyond Complainant's lifting restriction of ten pounds. Therefore, the use of a cart would not have been an effective accommodation and Complainant has not shown that the Agency could have effectively accommodated her. Accordingly, we find that the Agency did not discriminate against Complainant when it failed to accommodate her because Complainant has not shown that she is a qualified individual with a disability, and entitled to an accommodation.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Complainant alleges that she was discriminated against when she was kept from available work since August 2011. Assuming, arguendo, that she established a prima facie case of discrimination based on sex, age, disability, and in reprisal for prior EEO activity, we find that the Agency articulated a legitimate, non-discriminatory reason for its action. PM stated that when they discussed Complainant's return to work in August 2011, Complainant stated to him that she would not return unless she was able to use a cart. As discussed above, PM did not allow Complainant use of a cart because of her ten-pound lifting restriction. Additionally, PM stated that there was no work available that was within Complainant's restrictions.
Complainant also alleges that she was discriminated against based on reprisal for filing the instant EEO case when she was subject to a PDI meeting and issued a Notice of Removal. Assuming, arguendo, that Complainant has established a prima facie case of reprisal discrimination, we find that the Agency provided a legitimate, non-discriminatory reason for its actions. The OIG investigated Complainant and found that she was performing various house and yard work in a manner that was inconsistent with her medical restrictions. After receiving the findings from the OIG investigation, PM conducted the PDI to provide Complainant with an opportunity to respond to the findings. PM then issued Complainant a notice of removal based on the findings of the OIG report and her conduct during the PDI meeting. PM determined that Complainant's conduct violated the Agency's policies and noted that while Complainant denied any wrongdoing, she had not sufficiently explained her actions, beyond stating that she was following DR1's advice. Additionally, while we note that DR1 provided an extensive statement to support Complainant's position that she had not acted outside of her medical limitations, this statement was not provided until December 2, 2011, after PM conducted the PDI, and made his decision to remove Complainant.
We find that Complainant has not provided any evidence showing that PM's proffered reasons were pretext for discrimination. Accordingly, we find that Complainant has not shown that the Agency discriminated against her on the bases of sex, age, disability, and in reprisal for prior EEO activity when it denied her the ability to work since August 2011; conducted a PDI; and issued her a Notice of Removal.
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 decision finding that Complainant has not shown that the Agency discriminated against her on the bases of sex, age, disability, and in reprisal for prior EEO activity when it denied her the ability to work; failed to provide her with a reasonable accommodation; conducted a PDI and; issued her a Notice of Removal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__5/11/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In February 2011, the OIG started an investigation into Complainant after receiving an anonymous tip that Complainant was active, and not injured.
3 The record shows that Complainant worked some hours on August 1, 2, and 4, 2011, and was not on duty from August 6, 2011, through October 19, 2011. Complainant worked two hours on October 20, 2011, and then was not on duty through April 28, 2012.
4 The Notice of Removal cited to Complainant's violation of the Employee and Labor Relations Manual sections 665.15 Behavior and Personal Habits; and 661.2, which includes Title 5 U.S.C. Code of Federal Regulations �2635.101, Basic obligation of public service.
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