01983491
04-13-2000
Rita Jones, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Rita Jones v. United States Postal Service
01983491
April 13, 2000
Rita Jones, )
Complainant, )
) Appeal No. 01983491
v. ) Agency No. 1I671101996
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on
the bases of sex (female), age (52), and physical disability (right
middle finger injury with gangrene), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> Complainant claims that she was discriminated
against when her request for 30 days of advanced sick leave was denied.
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the reasons that
follow, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as an Air Records Processor at the agency's Wichita, Kansas Processing
and Distribution Center. Complainant claims that she requested 30 days
of advanced sick pursuant to her doctor's recommendation not to work
for a period of four to six weeks in order to allow her finger to heal.
She contends that the agency violated its personnel rules regarding
advanced sick leave when her request was denied, and that prior abuse
of sick leave and a poor attendance record were improper reasons for
denying the request. She claims that her supervisor (S) and the Plant
Manager (PM) were motivated by discriminatory animus toward her sex,
age, and disability when her request was denied.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion
of the investigation, complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). The AJ
subsequently canceled the hearing because complainant failed to appear
for the pre-hearing conference, and remanded the complaint for issuance
of a FAD.<2>
The FAD concluded that complainant failed to establish a prima facie case
of disability discrimination finding that she was not an "individual with
a disability" within the meaning of the Rehabilitation Act. The FAD
further concluded that even if complainant had established that she
was entitled to the protection of the Rehabilitation Act, she failed
to show that there was a nexus between the denial of the advanced sick
leave request and her right finger injury. Furthermore, the FAD also
concluded that complainant failed to show that the same policy (leave
abuse/poor attendance record) used to decide her request was disparately
applied, or that the agency granted advanced sick leave to those without
disabilities having similar attendance records.
Regarding complainant's sex and age discrimination claims, the FAD again
concluded that complainant failed to establish prima facie cases of
discrimination because she presented no evidence that similarly situated
individuals not in her protected classes were treated differently under
similar circumstances. The FAD also concluded that even if complainant
had established a prima facie case of sex or age discrimination, she
was unable to show that the agency's proffered reasons for denying her
request were a pretext for discrimination.
Complainant makes no statement on appeal. The agency requests that we
affirm its FAD.
Disability Discrimination
To establish a prima facie case of disparate treatment based on
disability, complainant must show that: 1) she meets the regulatory
definition of a person with a disability; 2) she is a qualified person
with a disability; and 3) she was subjected to an adverse personnel
action under circumstances giving rise to an inference of discrimination,
i.e. complainant must make a plausible showing that there is a nexus
or causal relationship between the disabling condition and the disputed
adverse action. See Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981); Bridges v. U.S. Postal Service, EEOC Appeal No. 01891679
(January 24, 1990).
The Rehabilitation Act only prohibits employment discrimination
against qualified individuals with disabilities.<3> An "individual
with a disability" is defined as 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 Major life activities include activities
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. 1630.2(i).
The Supreme Court has held that the determination of whether a person
has a "disability" must be based on his or her actual condition at the
time of the claimed discrimination, taking into consideration whether
the person is substantially limited in a major life activity when using
a "mitigating measure," if any. Sutton v. United Airlines, Inc., 527
U.S.471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S.516
(1999). The factors which the Commission recognizes as determining
whether an impairment substantially limits a major life activity include
the duration of the impairment, the severity of the impairment, and its
permanent or long-term impact. See Minehan v. Department of the Army,
EEOC Petition No. 03970092 (November 12, 1997).
After a careful review of the record, we agree with the agency that
complainant failed to establish that she was an individual with a
disability within the meaning of the Rehabilitation Act. According to a
December 11, 1995, physician statement, complainant was diagnosed with a
right middle finger injury with an open wound. The finger was described
as being extremely stiff and sore, and complainant was restricted to
repetitive use of the finger as tolerated. No medications, or any other
type of "mitigating measure" is indicated. A subsequent statement,<4>
submitted by a "Naturapathic Physician of Traditional Medicine"
indicates that he treated complainant for "gangrene of distal digit" and
recommended four to six weeks away from work for a "complete recovery."
The statement further indicates that complainant may return to work when
the finger is healed, noting some possible future restrictions, although
this portion of the statement is largely illegible. No other medical
evidence is of record, and complainant offers no statement regarding
the actual impairment experienced as result of her finger injury, nor
does she indicate the use of a mitigating measure.
Notwithstanding the somewhat lengthy convalescence period recommended
by complainant's doctor, we nevertheless find that complainant's finger
injury, even with the "gangrene" complication, is a temporary impairment
affecting only a single finger, with "complete recovery" anticipated.
In this regard we find that any future complications or restrictions are
merely speculative because complainant's doctor offers no explanation or
objective clinical evidence to substantiate them. Therefore, we conclude
that complainant's right middle finger injury is temporary and does not
rise to the level of a "substantial limitation" within the meaning of the
Rehabilitation Act. See Minehan, supra; Scura v. U.S. Postal Service,
EEOC Appeal No. 01965021 (October 8, 1998); EEOC Compliance Manual at
902-33 (March 14, 1995). Accordingly, the FAD correctly concluded that
complainant is not an "individual with a disability" within the meaning
of the Rehabilitation Act,<5> and consequently fails to establish a
prima facie case of disability discrimination.
Sex and Age Discrimination
Complainant also contends that she was discriminated against on the
basis of her sex and age, identifying employees outside of her protected
classes who were permitted to use advanced sick leave. However, after a
careful review of the record, based on McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the Commission agrees with the agency that complainant failed to establish
prima facie cases of sex or age discrimination because her identified
"comparators" were not similarly situated. In reaching this conclusion,
we note that it is well established that in order for employees to be
considered similarly situated, all relevant aspects of the employees'
work situation must be identical or nearly identical. This requires
that they engage in the same conduct, report to the same supervisor,
perform the same job function, and have equivalent pertinent records.
See Hunter v. U.S. Postal Service, EEOC Request No. 05960762 (October
1, 1998).
In the instant case, none of the identified comparators had attendance
problems similar to that of complainant, who had a sick leave balance
of only approximately 9 hours after seventeen years of employment with
the agency and no medical reason to account for such an extensive use of
sick leave. Moreover, except for one comparator, none of those identified
by complainant worked at the same facility or had the same supervisor.
Regarding the comparator who did work at the same facility, the record
shows that he requested advanced sick leave for chemotherapy treatments,
and based on his medical documentation, the agency anticipated that he
would return to work and be able to "pay back" the advanced sick leave,
whereas it had no such expectation of complainant.
Moreover, we find that the record is devoid of any other evidence from
which an inference of discrimination can be drawn. Furnco Construction
Corp. v. Waters, 438 U.S. 567,576 (1978). In this regard we find that
the agency did not violate its personnel regulations on advanced sick
leave which provide only that the agency "may" provide advanced sick
leave for "serious" debility, suggesting that the agency is permitted
to make this decision on a case-by-case basis. Here, we find that the
agency had an established policy of requiring employees to conserve
sick leave for emergency medical situations, and that its denial of
complainant's advanced sick leave request was based on a complete review
of complainant's leave and medical records. Given complainant's long
history of sick leave abuse and record of poor attendance, we find that
the decision was consistent with its policy and advanced sick leave
regulations.<6> Additionally, notwithstanding complainant's assertion
to the contrary, we find no evidence that the agency applied this policy
in a discriminatory manner. Furthermore, complainant's claim that S and
PM were motivated by sex or age animus is not corroborated anywhere in
the record, and there is no evidence to suggest that age was a factor
in the decision to deny complainant's request for advanced sick leave.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed.
Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to
as 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 (S1199)
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:
April 13, 2000
_______________ _________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant does not contest the AJ's determination to remand the case
to the agency to issue a FAD.
3The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at WWW.EEOC.GOV.
4This statement is undated, but was received by the agency on February
1, 1996.
5We note that a request for approval of leave for an absence caused by
a disability may constitute an implicit request for an accommodation.
McNeil v. U.S. Postal Service, EEOC Appeal No. 05960436 (July 28, 1998).
The agency has a duty to permit certain absences as an accommodation
to a qualified individual with a disability unless to do so would
create an undue hardship. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans With Disabilities
Act, No. 915.002 (March 1, 1999). However, given our conclusion that
complainant is not an "individual with a disability," we do not reach
the issue of whether the agency's denial of complainant's advance sick
leave request constitutes a failure to provide reasonable accommodation
on the facts of this particular case.
6In fact, we find that the agency would have also been justified in
denying complainant's request for advanced sick leave under the pertinent
personnel regulations because an injury to a single finger, even with
complications, cannot be considered "serious" as compared to the other
ailments for which advanced sick leave was requested by other employees,
such as cancer.