01965130
10-01-1998
Ruby R. Lucas, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Ruby R. Lucas v. Department of the Navy
01965130
October 1, 1998
Ruby R. Lucas, )
Appellant, )
)
v. ) Appeal No. 01965130
) Agency No. 9368499003
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
_________________________________)
DECISION
INTRODUCTION
On June 21, 1996, Ruby R. Lucas (hereinafter referred to as appellant)
timely filed an appeal to the Equal Employment Opportunity Commission
(the Commission) from the Department of the Navy's (hereinafter referred
to as the agency) final decision on her equal employment opportunity
complaint. The appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether appellant has proven, by a preponderance of
the evidence, that the agency discriminated against her on the bases of
her physical disability (arthritis-knees and spine) and reprisal (prior
EEO activity) when her position was abolished and she was assigned to
unclassified duties that required "too much physical energy."
BACKGROUND
In May 1993, appellant filed an EEO complaint alleging reprisal
discrimination. In an accompanying narrative, appellant complained
that she had been detailed to a position requiring "too much physical
exertion." According to appellant, she had injured her back in 1989,
and was restricted from certain physical activities. She asserted
that during the course of the detail, she "incurred a pinched nerve."
Appellant said that she advised her supervisors that her assigned duties
exceeded her physical limitations, but her supervisors did not change
her duties. Appellant stated that although she had wanted to retire
with 30 years of service, she did not want to risk further injury.
In its acceptance letter, the agency defined the issues as whether
appellant was subjected to reprisal discrimination when her position was
abolished and she was detailed to unclassified duties that required too
much physical exertion. In his July 1993 letter, appellant's counsel
informed the agency that appellant's complaint encompassed not just
a reprisal claim but also a disability claim. He also stated that the
agency's acceptance letter provided "accurate, shorthand summaries of the
issues that appellant set forth in greater detail in her complaint...."
He asked, however, that the investigation encompass the issues as "more
fully set forth" in appellant's narrative.
Because appellant did not request a hearing following completion of the
investigation, the agency issued a final decision (FAD) finding no race,
sex, disability or reprisal discrimination<1> and giving appellant
appeal rights to this Commission. Appellant--through counsel--then
filed this appeal contending that the agency constructively discharged
her and retaliated against her by reassigning her to a position with
duties exceeding her physical restrictions and then keeping her in
that position.
Until her retirement in April 1993, appellant was a GS-5 Lead Microfiche
Operator with the agency's Naval Counsel of Personnel Records, Physical
Evaluation Board (PEB) in Arlington, Virginia. In late 1992, the agency
purchased a new Imaging System to replace the current Microfiche System.
After a trial period, agency officials determined that one person could
perform the requisite duties and, based on the "repetitive nature and low
tasking" of the work, the duties should be assigned to the incumbent of
the GS-3 Microfiche Operator position. To allow appellant's continued
employment, agency officials determined that "mail and file" was the area
most in need of assistance; the duties could support a GS-5 position;
and, appellant was qualified to perform those duties.
On February 19, 1993, the second line supervisor informed appellant
that her position would be abolished and that she would be detailed to
a set of unclassified duties, effective February 23, 1993.<2> Agency
officials explained that if the duties were classified as a position
and appellant declined the offer of the position, she no longer would
be employed and she would not be eligible for early retirement if she
so desired. Consequently, agency officials detailed appellant to the
unclassified duties.
A position description for the GS-5 Microfiche Operator position showed
that the physical demands of the position were "[s]ome walking, standing,
bending, and carrying of light items."
The physical demands of the unclassified mail and file duties were
described as follows:
The work is primarily performed while sitting. Duties require occasional
periods of standing, walking, or bending. Duties also require lifting and
carrying of files, records or mail weighing up to 50 pounds. Mail is
transported between offices on metal mail carts (similar to grocery
carts).
There is a dispute as to when agency officials learned of appellant's
physical impairment.
Appellant asserted that in 1989, she had fallen in the office and injured
her back. Appellant contended that "[i]t was supposed to be noted
[in the agency's records] that I was to do no heavy lifting, pushing,
pulling, bending, stooping, [and] also not (sic) long periods of standing
or sitting." Appellant further asserted that, after being told that her
position would be eliminated, she informed her second line supervisor
of her back injury and said that she previously had provided medical
documentation in this regard. According to appellant, the second line
supervisor told her that she still was being detailed to the new duties.
Appellant said that about three days after she was detailed, she met
with the third line supervisor and explained that she could not meet the
physical requirements of the position. According to appellant, the third
line supervisor "supported" the second line supervisor's position.
The second line supervisor denied that the above described conversation
with appellant took place. She testified that when appellant was
detailed, there was no information, e.g., medical documents in her
personnel file or medical statements provided by appellant, to show
that she had a disability. The second line supervisor said that she
was informed that appellant had told floor workers that her back hurt.
After being so informed, the second line supervisor arranged to have
boxes or heavy items lifted by one of three military members who worked
in the same area as appellant.
The third line supervisor testified that she was the deciding official
on the elimination of appellant's position. She said that it was not
until after appellant had been detailed that appellant advised her of
any physical disability. That is, appellant complained of her inability
to perform the physical aspects of the job, e.g., lifting boxes of mail,
pushing the cart to deliver and retrieve mail, and so on. She said that
there was "nothing on file" about appellant's disability. Consequently,
she said they requested information from appellant's physician.
Both supervisors indicated that the Microfiche Operator position,
required appellant to do the same physical activities, e.g., pushing,
pulling, bending, twisting, and so forth, which she said she was unable
to do in performing the mail and file duties. The second line supervisor
testified that she had observed appellant performing numerous physical
tasks when assigned as Microfiche Operator, including heavy lifting.
On March 17, 1993, at the agency's request, appellant provided a letter
to her physician requesting specific information regarding the nature
of her physical limitations. A description of appellant's duties and
a checklist of the required physical activities also was included with
the letter. The checklist showed that appellant was to perform the
following activities on an intermittent basis for the times indicated:
lifting/carrying 0-10 lbs. (10 min./day), 10-20 lbs. (5 min./day), 20-50
lbs. (5 min./day); sitting (6 hrs. 40 min./day); standing (30 min./day);
walking (30 min./day); bending (10 min./day); stooping (15 min./day);
pulling/pushing (25 min./day); reaching above shoulder (10 min./day).
On March 25, 1993, appellant's physician responded, indicating that
appellant could work full-time but could not lift over 10 pounds or kneel,
bend, stoop, twist, pull, or push. There was no diagnosis or explanation
of any physical impairment necessitating the above limitations.<3>
The third line supervisor stated that she consulted with an orthopedic
surgeon who considered the job requirements for other positions in
the PEB and appellant's medical restrictions, and advised her that
appellant would not be able to do any of the available positions.
The third line supervisor also indicated that there were several
discussions with the Civilian Personnel Office (CPO) regarding what jobs
were available that might accommodate appellant's restrictions but she
told CPO that there were no positions which did not require bending,
stooping, twisting, lifting bundles, pushing and pulling. When the CPO
advised appellant of her options, she chose to take early retirement.
The third line supervisor denied that her actions were motivated by
unlawful discrimination.<4>
The Orthopedic Surgeon testified that he was a medical officer on
the PEB.<5> He said that he reviewed the report from appellant's
physician as it related to the limitations on her physical activities.
Upon evaluation, and based on his knowledge of the activities required
of PEB civilian employees, he determined that appellant's physical
restrictions prevented her from performing any of the duties required of
such employees. When the third line supervisor asked him what duties
appellant could perform, he advised her that basically appellant could
answer the telephone.
The record contains position descriptions for two GS-4 Clerk positions
that apparently were vacant at the Hearing Panel of the PEB in Bethesda,
Maryland. These positions also required handling and transporting case
files.
The Deputy Director (Colonel) testified that he was the staff officer
in charge of civilian personnel and principal advisor to the Director.
He said that in late 1992/early 1993, he was advised of reductions
to the civilian payroll budget which required reorganizing along more
efficient structural lines. He explained that in the PEB, the process
was reduced from 35 to 17 steps, eliminating the Microfiche Operator
function. He said that he was not part of appellant's supervisory chain;
he played no role in abolishing appellant's position; and, he had no
part in assigning appellant to unclassified duties. In his supplemental
affidavit, the Deputy Director noted that appellant had raised no medical
issues until after her job was changed.
On appeal, appellant contends that she was forced to retire because the
agency refused to reasonably accommodate her and that its refusal to do
so was in retaliation for her prior protected activity.
In response, the agency contends that appellant failed to show that she
is disabled or, even if she did, that the agency failed to reasonably
accommodate her. The agency also contends that appellant failed to show
that its actions were retaliatory.
ANALYSIS AND FINDINGS
Jurisdiction
Issues concerning termination and discharge, including an allegation of
constructive discharge, are matters ordinarily under the jurisdiction of
the Merit Systems Protection Board (MSPB). Appellant, however, did not
clearly raise her constructive discharge allegation until she filed her
appeal brief. As a result, the agency never advised her of her appeal
rights to the MSPB. Neither party has raised the jurisdictional issue
on appeal.
The Commission properly may assume jurisdiction of a constructive
discharge issue when it is so firmly enmeshed in the EEO process that it
would unduly delay justice and create unnecessary procedural complications
to remand it to the MSPB. See Simon v. United States Postal Service,
EEOC Request No. 05890464 (September 27, 1990).
Because the instant case is more than five years old, and because the
agency has already adjudicated the merits of appellant's complaint,
the Commission finds that the case is firmly enmeshed in the EEO process
and assumes jurisdiction over the case.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �1614.203(c).
To establish a prima facie case of disability discrimination, appellant
must show that: 1) she is an individual with a disability as defined
in 29 C.F.R. �1614.203(a)(1), 2) she is a "qualified" individual with
a disability as defined in 29 C.F.R. �1614.203(a)(6), and 3) the agency
took an adverse action against her. See Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). Appellant also must demonstrate
a causal relationship between her disabling condition and the agency's
reasons for the adverse action.
The threshold question is whether appellant is an individual with a
disability within the meaning of the regulations. EEOC Regulation 29
C.F.R. �1614.203(a)(1) defines an individual with a disability as one
who: 1) has a physical or mental impairment that substantially limits
one or more of that person's major life activities; 2) has a history
of such impairment; or 3) is regarded as having such an impairment.
EEOC Regulation 29 C.F.R. �1614.203(a)(3) defines "major life activities"
as including the functions of caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.
Appellant has asserted that she has arthritis, a pinched nerve, and a back
problem resulting from a fall in 1989. Appellant further asserted that
as a result, she could not perform her new job duties because she could
not bend, stoop, stand, twist or lift over 10 pounds. The sole medical
information contained in the record is a checklist of restrictions on
appellant's physical activities completed by her physician on March
25, 1993. Assuming, arguendo, that appellant is an individual with a
disability, the Commission finds that the agency did not discriminate
against appellant on the basis of her disability for the reasons stated
below.
In addition to showing that she is an individual with a disability,
appellant also must show that she is a "qualified" individual with
a disability within the meaning of 29 C.F.R. �1614.203(a)(6). That
section defines qualified individual with a disability as meaning,
with respect to employment, a disabled person who, with or without
reasonable accommodation, can perform the essential functions of the
position in question. The term "position in question" is not limited
to the position held by the employee, but also includes positions that
the employee could have held as a result of reassignment.
At the outset, the Commission finds that record evidence failed to show
that the agency knew or should have known of appellant's disability before
it assigned her to the detail. In this regard, agency officials credibly
testified that they were unaware of any disability until after appellant
was detailed to her new duties and then advised them of same. Agency
officials also pointed to the fact that appellant had been able to
physically perform the duties of the Microfiche Operator position and
that there was no record of a disability in appellant's personnel file.
Although appellant asserted that she was injured at work in 1989 and had
submitted to the agency medical documentation regarding her restrictions,
she did not provide those documents for the record.
Once advised of her physical limitations, agency officials attempted
to reasonably accommodate appellant. Specifically, agency officials
advised appellant that military members assigned to her area would do
any heavy lifting for her. Upon receipt of the restrictions imposed
by appellant's physician, agency officials attempted to identify other
positions in which they could accommodate appellant. Because of the
severity of the restrictions, however, they concluded that there were no
other positions whose duties were within her restrictions. Specifically,
the orthopedic surgeon determined that because of her restrictions,
the only task appellant could perform was answering the telephone.
Because appellant was unable to perform the essential functions of the
unclassified duties to which she was detailed with or without reasonable
accommodation and because there was no other vacant positions to which
she could be reassigned, the Commission finds that appellant was not a
qualified individual with a disability.
Reprisal Discrimination
To establish a prima facie case of reprisal discrimination, appellant
must show that: 1) she engaged in prior protected activity; 2) agency
officials were aware of her prior protected activity; 3) agency officials
took an adverse action against her; and, 4) the adverse action followed
her protected activity within such a period of time that a retaliatory
motive can be inferred. Cohen v. Fred Myer, Inc., 686 F.2d 793, 796
(9th Cir. 1982).
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such
cases, the inquiry shifts from whether the complainant has established
a prima facie case to whether she has demonstrated by a preponderance
of the evidence that the agency's reason for its actions merely was a
pretext for discrimination. Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
The agency articulated legitimate, nondiscriminatory reasons for
its actions. Agency officials explained that appellant's position was
abolished because of downsizing and new technology. To allow appellant
to continue working after her position was eliminated, agency officials
detailed appellant to unclassified duties that had been taken from other
positions.
The Commission finds that the evidence fails to show that the agency's
reasons for its actions were a pretext for unlawful discrimination. Agency
officials testified that they were aware of appellant's 1990 complaint.
Record evidence showed, however, that none of the agency officials
named in the instant complaint were involved in her prior complaint.
Appellant provided no explanation as to why the agency officials herein
might retaliate against her three years later for a complaint in which
they had no involvement. Finally, the Commission finds that appellant's
other evidence, e.g., the manner in which appellant was informed of
her new duties, agency officials' comments regarding appellant's work
performance, and so on, likewise is insufficient to establish pretext.
Constructive Discharge
Constructive discharge generally involves a showing that: 1) the employer
subjected an employee to working conditions that a reasonable person
in the employee's position would find intolerable; 2) discriminatory
conduct created the intolerable working conditions; and, 3) the employee
resigned involuntarily as a result of the intolerable working conditions.
See Harrell v. Army, EEOC Request No. 05940652 (May 24, 1995).
The Commission already has found that the agency's actions in this case
did not constitute disability or reprisal discrimination. Consequently,
appellant's claim of constructive discharge must fail.
The Commission notes that in reaching the conclusion that the agency
did not discriminate against appellant, it considered the record in its
entirety and all of the parties arguments and contentions on appeal,
including those not addressed directly herein.
CONCLUSION
Based upon a careful review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
DATE Frances M. Hart
Executive Officer
1On appeal, appellant's attorney advised that the agency mistakenly
addressed the bases of race and sex in the FAD. That is, appellant
had raised these bases in a prior complaint, but not in the instant
complaint. Consequently, the Commission will not address the bases of
race and sex herein.
2It appears that a total of three microfiche operator positions were
abolished.
3On appeal, appellant's attorney indicates that appellant had "arthritis,
a pinched nerve, and a back problem resulting from a fall."
4The third line supervisor indicated that following the detail,
appellant told her that she wanted the Imaging System job instead of
the new unclassified duties. About three weeks later, appellant told
her that she did not understand what the new duties required and the
priorities attached thereto.
5The PEB was responsible for processing, reviewing and promulgating
findings in 15,000 cases per year involving military members whose medical
records were referred to determine their fitness for continued military
duty.