0320090059
07-07-2009
Sebrenia Burt, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sebrenia Burt,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090059
MSPB No. SF-0353-08-0699-I-1
DECISION
BACKGROUND
On April 27, 2009, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning her claim
of discrimination in violation of 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.
Petitioner alleged that she was discriminated against on the bases of
disability (back injury and carpal tunnel), age (DOB: December 16, 1955),
and reprisal for prior protected EEO activity when on August 22, 2008,
petitioner's request to be returned to duty was denied.
The record indicates that petitioner began service with the agency as
a distribution/window clerk at the agency's Wes Los Angeles Station
in California. Petitioner sustained two work-related injuries.
The first, a lumbar strain, occurred in February 2000. Then in
September 2000, petitioner was diagnosed with bilateral carpal tunnel.
Petitioner was unable to work after October 25, 2001, and was in a leave
without pay status. In May 2004, petitioner was offered a modified
distribution/window clerk position. Petitioner rejected the position
because the position did not accommodate her medical restrictions at
that time.
On May 12, 2006, the Area Injury Compensation Specialist noted on a
"Request for Separation" that she approved the separation of petitioner
based on "her employment history, age, and medical status." This
memorandum was submitted to the Manager, Health and Resource Management
at the agency's Headquarters. On June 5, 2006, the Customer Services
Manager issued petitioner a notice of proposed separation based on
petitioner's inability to perform the essential functions of her position.
On June 14, 2006, petitioner contacted the HR Manager requesting that
she be accommodated and she could return to her window clerk duties.
Petitioner also filed an EEO complaint regarding the proposed separation.
The matter was resolved by settlement agreement dated July 20, 2006.
The provisional agreement required the agency to conduct a job search
for a position within petitioner's limitation.
On July 26, 2006, the HR Manager provided a memorandum to all managers
within the Los Angeles District calling for a "permanent modified work
assignment" consistent with petitioner's limitations. The HR Manager did
not receive any positive responses. On August 20, 2006, the agency's Los
Angeles District Reasonable Accommodation Committee (DRAC) sent petitioner
a memorandum indicating the DRAC had been tasked with determining
whether the agency could accommodate petitioner's medical restrictions.
The meeting was scheduled for September 20, 2006. Petitioner was asked
to provide all medical documentation prior to the meeting.
On September 13, 2006, petitioner provided the requested medical
documentation. She also indicated a list of tasks that she believed she
could perform. Her medical restrictions at the time included: no pulling,
pushing, or lifting over 10 pounds; no twisting, bending, or stooping;
and grasping only two hours per work shift. Petitioner noted that she
may be able to perform the duties of a job offer the agency had made
back in July 2004. Back in July 2004, petitioner had rejected the offer
because her medical restrictions were more limiting regarding lifting.
At the time in 2004, she was not able to perform the July 2004 offer.
On September 20, 2006, petitioner met with the DRAC regarding her request
to return to work. On June 22, 2007, the DRAC sent petitioner its final
response to her request for a reasonable accommodation. The DRAC noted
that petitioner indicated that she could perform modified duties for the
distribution clerk position. Petitioner asked for the agency to place her
in a lobby director position or modify her distribution clerk position.
The DRAC found that although petitioner identified tasks she believed
she could perform, the tasks as a whole did not constitute any recognized
position within the agency. The DRAC noted that looking at other lower
level position, namely the mailhandler and custodian positions, they
did not fall within her medical limitations. As such, petitioner's
request for reasonable accommodation was denied. On July 2, 2007,
petitioner asked for reconsideration for her request. On September 19,
2007, the DRAC met with petitioner again. Her request was denied.
On January 4, 2007, petitioner filed a formal complain of discrimination
alleging that the agency denied her request to return to work on the bases
of age, disability and in retaliation for prior EEO activity. An EEOC
Administrative Judge dismissed the case for processing by the MSPB.
Petitioner timely appealed the matter to the MSPB.1
MSPB DECISION
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued
an initial decision finding no discrimination. The MSPB AJ determined
that petitioner failed to show that a reasonable accommodation would
have allowed her to perform the essential functions of her position.
Further, petitioner did not identify a position to which she could have
been reassigned. As such, the MSPB AJ determined that petitioner failed
to prove her disability discrimination claim.
As to petitioner's claim of age-based discrimination, the AJ noted
that although the Area Injury Compensation Specialist noted "age" on
the request to separate memorandum, the agency officials that tried to
find an accommodation for petitioner, namely the members of the DRAC,
did not consider petitioner's age. Petitioner provided no other evidence
in support of her claim. Therefore, the MSPB AJ found that petitioner
did not prove her claim of age-based discrimination.
Finally, as to petitioner's claim of unlawful retaliation, the MSPB
AJ found no evidence to support petitioner's assertion. The MSPB AJ
noted that the agency provided legitimate, nondiscriminatory reasons
for its actions. Accordingly, the MSPB AJ concluded that petitioner
did not establish her claim of unlawful retaliation.
PETITION FOR REVIEW
Petitioner then filed the instant petition. Petitioner argued that she
provided direct evidence of age and disability based discrimination.
She noted on the memorandum requesting separation indicated that the
reasons for the action were her age and medical restrictions. As such,
petitioner asked that we reverse the MSPB AJ's decision and find that
the agency's decision to reject her request to return to work was
discriminatory.
FINDINGS AND ANALYSIS
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Denial of 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.
For the purposes of analysis, we assume petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1).
Petitioner also must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). We note that
the discussion of "qualified" does not end at petitioner's position.
The term "qualified individual with a disability," with respect to
employment, is defined as a disabled person who, with or without a
reasonable accommodation, can perform the essential functions of the
position held or desired. 29 C.F.R. � 1630.2(m). The term "position"
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.
Therefore, in determining whether an employee is "qualified," an agency
must look beyond the position which the employee presently encumbers.
Upon review of the record, we find that petitioner could not perform
the essential functions of her distribution clerk position during the
relevant time period due to her medical restrictions. Petitioner does not
present evidence that during that time, there was a vacant funded position
for which she was qualified and to which she could have been reassigned.
Instead, she argues that the agency failed to make work for her or combine
duties she could perform. However, we note that an employer is not
required to create a job for a disabled employee, nor is it required to
transform its temporary light or limited duty assignments into permanent
jobs to accommodate an employee's disability. See Mengine v. Runyon,
114 F. 3d 415, 418 (3d Cir. 1997); see also Woodard v. United States
Postal Serv., EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement
Guidance: Workers Compensation and the ADA, EEOC Notice No. 915.002 at
21 (September 3, 1996). Therefore, we find that the MSPB AJ correctly
determined that petitioner had not established that she was a qualified
individual with a disability during the relevant time period and thus,
cannot establish a violation of the Rehabilitation Act.
Retaliation and Age-Based Discrimination Claims
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For petitioner to prevail, he
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
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the petitioner bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the agency provided legitimate,
nondiscriminatory reason for denying petitioner's request to return
to work. The record indicates that petitioner was not able to perform
her position. Petitioner has not shown that the agency's reason for
denying her request were pretext. As such, we find that petitioner
has not established that the agency's action constituted discrimination
based on age and/or in reprisal for prior EEO activity.
CONCLUSION
Based upon a thorough review of the record, it is the decision of
the Commission to concur with the final decision of the MSPB finding
no discrimination. The Commission finds that the MSPB's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
July 7, 2009
__________________
Date
1 It is noted that petitioner also appealed the dismissal by the EEOC
Administrative Judge to the EEOC which was docketed as EEOC Appeal
No. 0120083884.
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0320090059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090059