0120081755
07-21-2011
Pmischael Frye, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Pmischael Frye,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120081755
Hearing No. 430-2007-00309X
Agency No. 1K-281-0009-07
DECISION
On February 28, 2008, Complainant filed an appeal from the Agency’s
February 1, 2008 final order 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. and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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
MODIFIES the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Supervisor of Distribution Operations at the Processing and Distribution
Center in Charlotte, North Carolina. On January 30, 2007, Complainant
filed an EEO complaint alleging that the Agency discriminated against
her on the bases of race (African-American), sex (female), disability,
and in reprisal for prior protected EEO activity when:
1. On November 2, 2006, she was denied a reasonable accommodation and
sent home;
2. On November 18, 2006, she was told that management would not enter her
leave as Continuation of Pay (COP) and escorted her out of the building;
3. On January 9, 2007, her off days were changed;
4. On January 10, 2007, she was told that she could not go on the west
dock; and,
5. On January 12, 2007, she submitted her request for a
Detail/Reassignment and was denied.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. The AJ held a hearing on December 20, 2007,
and issued a bench decision immediately thereafter.
Initially, the AJ dismissed claim (1) for untimely EEO Counselor contact.
On February 2, 2006, Complainant injured herself while operating a tractor
trailer door. The AJ determined that Complainant should have reasonably
suspected discrimination in March 2006, when she complained to management
that her lower back injury was slowly deteriorating and submitted
medical documentation, but was not given a reasonable accommodation.
The AJ found that Complainant’s EEO Counselor contact six months later
on November 7, 2006 was beyond the 45-day time limit. As a result,
the AJ dismissed claim (1) for untimely EEO Counselor contact.
Next, the AJ found that Complainant had not established a prima facie
case of discrimination as to the remaining claims on the alleged bases.
Nonetheless, the AJ assumed arguendo that Complainant had established
a prima facie case of discrimination and determined that the Agency
had articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to claim (2), the record indicated that Complainant
returned to work from an on-the-job injury on November 1, 2006,
but was sent home the next day because she had not submitted medical
documentation returning her to work. On November 9, 2006, Complainant
returned to the building, off the clock, and was struck by a forklift.
Complainant reported it the next day and, on November 18, 2006, returned
to the premises twice to file paperwork including a request for COP.
The COP was denied because Complainant, while injured on the job, did
not report the injury within 30 days as required by Agency regulations.
The Human Resources Specialist testified that while an aggravation to
an injury may be sufficient to receive COP, Complainant requested the
COP beginning the day before she was struck by a forklift.
In regard to claim (3), Complainant’s off days were changed to
coincide with her modified duties and responsibilities, and the position
Complainant previously occupied had gone through a schedule restructuring
which shifted off days. Regarding claim (4), Complainant’s job duties
did not require her to go to the west dock. Finally, in regard to claim
(5), the requested detail or reassignment was not granted because there
was no detail or assignment available.
The AJ determined that Complainant had presented no evidence that the
Agency’s reasons were pretextual. As a result, the AJ found that
Complainant had not been discriminated against as alleged. Further,
the AJ concluded that the alleged incidents were not sufficiently severe
or pervasive to constitute a discriminatory or retaliatory hostile work
environment. Accordingly, the AJ found that Complainant had not been
subjected to a hostile work environment. The Agency subsequently issued
a final order adopting the AJ’s decision. Complainant submitted no
contentions in support of her appeal.
ANALYSIS AND FINDINGS
Standard of Review
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. Nat’l Labor Relations Bd.,
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Disparate Treatment
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the Agency denies that its decisions were motivated by Complainant's
disability and there is no direct evidence of discrimination, the
Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C. Cir. 1999). Under this analysis, in order to establish
a prima facie case, Complainant must demonstrate that: (1) she is an
“individual with a disability”; (2) she is “qualified” for the
position held or desired; (3) she was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give
rise to an inference of discrimination. Lawson v. CSX Transp., Inc.,
245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the
evidence that the Agency's reasons were 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 Serv. Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).
Upon a review of the record, the Commission finds that the AJ's finding of
no discrimination is supported by substantial evidence. The Commission
concurs with the AJ's finding that assuming arguendo that Complainant
established a prima facie case of discrimination on the alleged bases,
the Agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions, as set forth above. Specifically, as to claim (2), the
Health and Resource Management Specialist testified that Complainant’s
COP request was denied because Complainant requested coverage for an
injury that occurred in February 2006 and that request was beyond the
Agency’s 30-day policy. Hr’g Tr., at 96-97. Further, Complainant’s
COP request for the November 2006 injury was denied because she claimed
coverage beginning the day before she suffered the injury. Id. at 99-100.
Further, M1 added that she escorted Complainant out of the building,
because the last time Complainant was on the premises, she allegedly had
an accident and M1 wanted to ensure that Complainant did not get hurt.
Id. at 150-51.
In regard to claim (3), M1 affirmed that when Complainant returned to
work in January 2007, she provided medical documentation regarding her
restrictions and she was assigned to the manual letters area. Hr’g Tr.,
at 151-52. Before Complainant returned, the Agency restructured schedules
in the manual letters area and, as a result, Complainant’s days off
were changed. Id. at 152. M1 maintained that anyone coming into that
position would have had the same days off. Id. Regarding claim (4),
M1 affirmed that she did not recall specifically ordering Complainant
to not go on the west dock, but there was no reason for Complainant to
go there in the course of her assigned duties. Id. at 153. Finally,
as to claim (5), the Acting Senior Manager of Operations (ASM) maintained
that while Complainant asked her about available detail assignments, she
informed Complainant that nothing was available at that time. Id. at 104.
The Commission finds that there is substantial evidence supporting the
AJ’s finding that Complainant failed to prove that the Agency’s
legitimate, nondiscriminatory reasons pretextual. As a result, the
Commission finds that Complainant was not discriminated against as
alleged.
Denial of Reasonable Accommodation
The Commission finds error in the AJ's finding that Complainant’s
initiation of EEO Counselor contact in claim (1) was untimely. This claim
must be characterized as a recurring violation. Specifically, the EEOC
Compliance Manual, Section 2, “Threshold Issues,” p. 2-73, EEOC
Notice 915.003 (July 21 2005), provides that “because an employer has
an ongoing obligation to provide a reasonable accommodation, failure to
provide such accommodation constitutes a violation each time the employee
needs it.” Furthermore the Commission has specifically held that the
denial of reasonable accommodation constitutes a recurring violation that
repeats each time the accommodation is needed. See Harmon v. Office of
Personnel Managemt, EEOC Request No. 05980365 (Nov. 4, 1999). Therefore,
the Commission finds that Complainant's EEO counselor contact was timely
as to her reasonable accommodation claim, and that the AJ improperly
dismissed it. Nonetheless, under the specific circumstances present,
the Commission finds the error was harmless as the record and hearing
testimony contains sufficient evidence for us to adjudicate Complainant's
accommodation claim as discussed below.
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. § 1630. In order to establish that
Complainant was denied a reasonable accommodation, she 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 Enforcement Guidance: Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002
(October 17, 2002) (“Enforcement Guidance”). 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. 2 9 C.F.R. § 1630.9.
Assuming without deciding for the purposes of this decision that
Complainant is a qualified individual with a disability, the Commission
concludes that Complainant has failed to prove that she was denied
reasonable accommodation in violation of the Rehabilitation Act.
The record reveals that Complainant was out of work due to an on-the-job
injury from March 2006 until November 2006. Complainant returned to
work on November 2, 2006, but failed to provide any medical documentation
clearing her to return to work. Hr’g Tr., at 144. Complainant informed
M1 that she was restricted to working only four hours a day, but did not
submit any documentation in support. As Complainant did not provide
any medical documentation indicating that she was cleared to work or
what her restrictions were, M1 sent her home. The Agency needed medical
documentation to determine what accommodation would best serve the needs
of the Agency and Complainant. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002, Question 6 (as revised Oct. 17, 2002). It is clear
that the Agency sought to engage Complainant in the interactive process,
but Complainant failed to participate. Further, the record reveals that
when Complainant returned to work in January 2007 after her second injury,
she provided the Agency the requested medical documentation and she was
provided a position in accordance with her restrictions in the manual
letters area. Hr’g Tr., at 151-52. Thus, the Commission finds that
Complainant was not denied reasonable accommodation in violation of the
Rehabilitation Act.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998); Cobb
v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title VII
[or the Rehabilitation Act] must be determined by looking at all of the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) at 3, 6. The harassers'
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
After a review of the record, the Commission finds that the incidents
alleged do not constitute discriminatory harassment. In so finding,
the Commission notes that EEO laws are not a civility code. Rather,
they forbid “only behavior so objectively offensive as to alter the
conditions of the victim's employment.” Oncale v. Sundowner Offshore
Serv., Inc., 523 U.S. 75, 81 (1998). The Commission concludes that
Complainant did not prove that she was subjected to conduct sufficiently
severe or pervasive to create a hostile work environment and that she
also failed to prove that the Agency's actions were unlawfully motivated
by her protected classes. Accordingly, Complainant has not shown that
she was subjected to a discriminatory hostile work environment.
CONCLUSION
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the Agency’s
final order because the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (Nov. 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 (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 (Z0610)
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 21, 2011
Date
2
0120081755
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013