Sylvia L. Davis-Hodges, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 19, 2009
0120070285 (E.E.O.C. Mar. 19, 2009)

0120070285

03-19-2009

Sylvia L. Davis-Hodges, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sylvia L. Davis-Hodges,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070285

Agency No. 4J-600-0045-06

DECISION

On October 16, 2006, complainant filed an appeal from the agency's

September 13, 2006 notice of final decision concerning her equal

employment opportunity (EEO) complaint alleging employment discrimination

in violation of Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, complainant

worked as a City Carrier at the agency's Maywood, Illinois Post Office.

During the relevant time, Supervisor A, Supervisor of Customer Services,

was complainant's first level supervisor. Supervisor B, Supervisor

of Customer Services, dealt with light and limited duty employees and

prepared job offers upon receipt of medical documentation.

On March 17, 2006, complainant filed an EEO complaint alleging that she

was discriminated against on the bases of disability (shoulder tendonitis)

and in reprisal for prior protected EEO activity when:

1. On November 21, 2005, complainant's request for a temporary schedule

change was denied;

2. On December 5, 2005, complainant was instructed to pull down her

route despite her medical restrictions;1

3. On December 6, 2005, complainant was instructed not to pull down

her route and told to stand on pallets with both arms reaching over her

shoulders;2

4. On December 6, 2005, complainant was given a modified job offer and

a letter, both changing her starting time from 7:00 a.m. to 10:00 a.m.;

5. On December 7, 2005, complainant was yelled at and told to go home;

6. On December 8, 2005, Supervisor A yelled that complainant could not

case her route and denied her a "no lunch punch";

7. On December 22, 2005, complainant was told that she was being sent

home on administrative leave when she refused to sign a job offer,

but she has not been paid;

8. On December 28, 2005, complainant was sent home for refusal to sign

a third modified job offer, but she has not been paid;

9. On December 29, 2005, complainant was offered a job assignment that

excluded casing her route compared to a coworker (Employee 2) with a

similar injury who was allowed to case her route;

10. On January 3, 2006, complainant's 3971s were changed by Supervisor

A because she was not entitled to a "no lunch punch";

11. On January 5, 2006, complainant was harassed about her personal

vehicle being parked in the Post Office parking lot;

12. On January 7, 2006, complainant was sent to the Oak Park Post Office

for training and forced to remain there to date;

13. On February 23, 2006, complainant was notified by the Office of

Workers' Compensation Programs (OWCP) that her compensation benefits

were terminated; and

14. On December 6, 2005, and December 31, 2005, complainant requested

reasonable accommodations regarding a Shoulder Relief Riser (platform)

and a Side Case, and neither of her requests were honored by management.

On March 27, 2006, the agency dismissed issues (1) and (13) pursuant to

29 C.F.R. �1614.107(a)(1), for failure to state a claim. With regard

to issue (1), the agency found that complainant failed to establish an

adverse action when management denied her request for a temporary schedule

change for personal convenience. With regard to issue (13), the agency

found that complainant was lodging a collateral attack against OWCP.

The agency accepted the remaining issues for investigation.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b). The decision concluded that complainant failed to prove

that she was subjected to discrimination as alleged.

In its final decision, the agency incorporates its March 27, 2006

dismissal of issues (1) and (13). With regard to complainant's disparate

treatment claim, the agency states complainant has failed to identify

similarly situated employees outside of her protected group who were

treated more favorably than she. Moreover, the agency found assuming

complainant had established a prima facie case of discrimination,

management has articulated legitimate, non-discriminatory reasons for

their actions. With regard to being instructed to pull down her route

on December 5, 2005, the agency stated that at the time, that task

was within her restrictions. The agency noted that as of November 21,

2005, complainant's medical restrictions indicated that she could reach

above her shoulders with her right arm only, which had no restrictions,

and would permit her to pull down her case.

With regard to her claim that on December 6, 2005, she was instructed to

stand on two pallets, the agency stated that in an attempt to accommodate

complainant, the agency had her stand on a pallet and raise her arms on

December 6, 2005, to see if she could reach the fourth row of her case.

Supervisor A stated that with the lift to stand on, complainant was

able to reach all levels of her case without lifting her arm above her

shoulder, which was within her medical restrictions. Supervisor A stated

complainant insisted that she could not case mail and went back to her

doctor and returned with even more restrictive medical documentation

for the third time in seven days. The agency noted that Employee 1 was

also asked to do the same thing to determine what accommodations would

be necessary. Supervisor A stated that since complainant could not case

they found another assignment for her.

With regard to the issue of the December 6, 2005 modified job offer,

Supervisor A stated that the job offer was issued in response to

complainant's updated medical information. Supervisor A stated that

the start time for complainant changed from 7:00 a.m. to 10:00 a.m., and

complainant was given made-up work around the office such as answering

the phone, running errands and nixies. Supervisor A stated that none of

the work was needed, but that it was of most assistance later in the day

and the work did not conflict with complainant's medical restrictions.

Supervisor B also stated that the change in start time better served

the needs of the office.

With regard to the claim of being sent home on December 7, 2005,

the agency stated complainant was not sent home on December 7, 2005.

Supervisor A explained that complainant was instructed to sign a

modified job offer and thereafter caused a scene on the workroom floor.

Complainant was instructed to return to the office to resolve the matter.

Supervisor A stated complainant refused to return to the office.

Supervisor A stated at this point complainant was warned that if

she continued to fail to follow instructions she may be sent home.

The agency cited time records showing complainant worked eight hours on

December 7, 2005. Complainant acknowledged that after she provided the

agency with a statement from her doctor, she was permitted to work.

With regard to the claim that on December 8, 2005, Supervisor A yelled

that complainant could not case her route and denied complainant a

"no lunch punch," the agency noted that Supervisor A does not recall

telling complainant that she could not case her route on December 8, 2005.

The agency stated complainant was assigned miscellaneous duties contained

in her job offer. Supervisor A stated she did not yell at complaint but

spoke firmly to be understood and to try and stop the scene complainant

was making on the workroom floor. Supervisor A noted that a carrier

on the street is allowed, with advance notice, to choose not to take

a lunch. Supervisor A stated that complainant was working in the office

and it is agency policy not to allow employees working in the office to

opt to not take lunch. Further, Supervisor A noted that permitting a

"no punch lunch" is done well in advance to the lunch break.

With regard to complainant's claim that she was sent home on December 22,

2005, for refusing to sign a modified job offer, the agency states that

there was a disagreement between what complainant's doctor's orders

said complainant could do and what complainant said she could do and

therefore, complainant was sent home. The agency noted complainant

was sent home on unpaid leave for 2.9 hours. Supervisor A stated when

complainant refused the agency's good faith offer, there was no other

work available within her restrictions.

With regard to the claim that complainant was sent home on December 28,

2005, Supervisor B stated complainant was offered a third job offer,

with no changes from the pervious two job offers (December 5, and 22,

2005), which she would not sign. Supervisor B stated complainant was

sent home because she would not cooperate with management and refused

to comply with her medical restrictions.

With regard to the claim that on December 29, 2005, complainant was

offered a job assignment that excluded casing while another employee was

permitted to case her route, the agency stated that complainant was given

the offer at issue which excluded casing duties as a result of medical

documentation she submitted which restricted complainant from raising

her arms above her shoulders, which is required when casing. The agency

noted that casing had not been part of the previously offered modified

assignments. Supervisor A stated that Employee 2's restrictions enabled

her to case her route. Supervisor B noted that complainant signed the

December 29, 2005 offer.

With regard to the claim that on January 3, 2006, complainant's 3971s

were changed by Supervisor A, the agency stated although carriers

are allowed to choose not to take a lunch, it is not agency policy

to allow employees working in the office to opt not to take a lunch.

Supervisor A stated while a "no click lunch" is allowed at times,

it is something that is agreed to in advance and well before lunch,

and complainant did not have prior approval on the date in question.

With regard to the claim that on January 5, 2006, complainant was harassed

about her personal vehicle being parked in the Post Office parking lot,

Supervisor A noted that there were numerous instructions and service

talks about not parking in the parking lot except for in the five

designated spaces and informing employees that personal vehicles parked

elsewhere would be towed. Supervisor A stated complainant continued

to park anywhere in the lot, and on January 5, 2006, was parked in a

spot designated for a mail truck. When questioned, complainant gave

no explanation for parking in this spot. Supervisor A stated she did

not raise her voice, but it was firm and resolute, to try to stop the

spectacle complainant was making on the workroom floor. Supervisor A

stated complainant was counseled regarding parking her personal vehicle

the day before the incident at issue.

With regard to the claim that on January 7, 2006, complainant was sent

to the Oak Park Post Office for training and forced to remain there to

date, Supervisor B stated that complainant was instructed to go to the

Oak Park Post Office for training as an Automated Postal Center (APC)

Lobby Assistant. The Acting Manager of Post Office Operations stated that

during the relevant time a number of offices needed help staffing the APCs

and that since the Maywood Post Office did not have enough work for its

limited duty employees, it was suggested that they send some limited duty

employees to those offices needing help staffing APCs. Complainant did

not claim that this assignment violated her medical restrictions.

The agency also addressed complainant's claim that on December 6, 2005,

and December 31, 2005, complainant requested reasonable accommodations

regarding a Shoulder Relief Riser (platform) and a Side Case, and neither

of her requests were honored by management. The Officer in Charge

(OIC) stated that complainant requested to have the whole case reduced

to two shelves instead of five and the OIC stated that this request was

unreasonable because the agency would have had to add equipment and then

the replacement carriers would have to learn a case that would not be

within Postal regulations. The OIC stated that the cost would have been

$3,000.00. The OIC states that the union president told complainant that

he was in agreement with the OIC that the request could not be granted.

On appeal, complainant states that she remembers her representative

told her about a hearing and explains when she received the report of

investigation she "thought that [she] had requested a hearing and [she]

thought that everything was taken care of." Complainant now requests her

case proceed through a hearing. Complainant states the agency refused

her request for a step platform. Complainant states that other employees

were accommodated after she left the Maywood facility.

In response to complainant's appeal, the agency reiterates the arguments

made in its final decision. The agency requests the Commission affirm

its final decision.

ANALYSIS AND FINDINGS

We note that on appeal complainant does not challenge the agency's

dismissal of issues (1) and (13), therefore, we will not address the

propriety of the agency's dismissal of these issues.

As this is an appeal from a decision issued without a hearing,3 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 EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Upon review, we find the agency articulated legitimate, non-discriminatory

reasons for the actions alleged. Moreover, complainant failed to show

that the articulated reasons were a pretext for discrimination.4

With regard to her claim that she was denied a reasonable accommodation,

we note the record reveals that on December 6, 2005, complainant requested

"that [she] can be allowed to case [her] route. . . [and] for [her] hours

to remain the same." In a December 31, 2005 letter, complainant requested

a shoulder relief platform riser, to reduce the distribution levels from

five to three (meaning two side cases and one front case), and to have

her start time changed back to 7:00 a.m. Upon review of the record,

we note complainant did not have any medical documentation indicating

that any of her requested accommodations were necessary to perform the

essential functions of her position. Thus, we find complainant did not

establish that the agency denied her a reasonable accommodation.

Accordingly, the agency's final decision finding no discrimination is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 9-18 (November 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 (S0408)

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 (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

March 19, 2009

__________________

Date

1 Although complainant listed December 2, 2005, as the date of this

incident on her complaint, she later clarifies that the incident occurred

on December 5, 2005.

2 In her complaint, complainant stated she was instructed to pull down

her route on December 6, 2005; however, she later clarified she was

instructed not to pull down her route on the date in question.

3 Complainant has not shown that she timely requested a hearing.

4 We do not address in this decision whether complainant is a qualified

individual with a disability.

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0120070285

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120070285