0120093198
06-10-2011
Thelma A. Failey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Thelma A. Failey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120093198
Agency No. 1E-971-0029-08
DECISION
On July 18, 2009, Complainant timely filed an appeal from the Agency’s
June 23, 2009, final decision 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., 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are: 1) whether the Agency properly determined that
Complainant had not been discriminated against based on age, race, and
disability when she was excessed from Tour 2 to Tour 3; and 2) whether
the Agency properly determined that Complainant had not been denied
reasonable accommodation when her request to remain on Tour 2 was denied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail Processing Clerk on Tour 2 at the Agency’s Mount Hood Detached
Distribution Center in Portland, Oregon. Report of Investigation (ROI),
Complainant’s Aff., at 1-2. Complainant has diabetes requiring the
use of insulin. Id. at 24 Also, Complainant suffered a back injury in
2000, as well as neck and rotator cuff injuries in April 2004. Id. at
2. As a result, Complainant was put on medical restrictions and placed
in a limited-duty assignment. ROI, Facility Manager Aff., at 3. The
limited-duty assignment stated that Complainant would not push, pull,
or lift objects in excess of 20 pounds. Id.
In June 2008, the Facility Manager informed Complainant and other
employees on Tour 2 that a whole crew of employees would be excessed
from Tour 2 to Tour 3 due to a decrease in mail volume. Id. While Tour
2 employees were required to work from 9:00 a.m. to 5:30 p.m., Tour
3 employees were required to work from 4:00 p.m. to 12:30 a.m. ROI,
Aff. D, at 9. Not wanting to work on Tour 3, Complainant requested
as a reasonable accommodation that she be allowed to remain on Tour
2. In an attempt to accommodate Complainant, on August 13, 2008, the
Agency referred Complainant to the District Reasonable Accommodation
Committee (DRAC). ROI, Complainant’s Aff., at 13. After speaking with
Complainant on August 21, 2008, the DRAC determined that Complainant
was not substantially limited in a major life activity, and therefore
refused her requested accommodation to remain on Tour 2. Id.
Thereafter, on September 13, 2008, Complainant was provided with a
new offer of limited duty on Tour 3 with hours of 4:00 p.m. to 12:30
a.m. ROI, Ex. 5, at 1. The new limited-duty offer was in all respects the
same as Complainant’s Tour 2 limited-duty offer, with the exception
of work hours. Id. Complainant would not be required to push, pull,
or lift objects in excess of 20 pounds. Id. Complainant was not content
with working on Tour 3, and her last day in pay status with the Agency
was on September 28, 2008. ROI, Ex. 1. Thereafter, Complainant filed
for disability retirement. Id.
On October 22, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American),
disability, and age (60) when:
1. she was notified that her assignment was changed from Tour 2 to Tour
3 effective September 13, 2008; and
2. on August 22, 2008, her accommodation request to remain on Tour 2
was denied.1
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). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged.
The Agency noted that assuming, for the sake of argument, that Complainant
had established a prima facie case of discrimination based on race, age,
and disability, management articulated a legitimate, nondiscriminatory
reason for its action. Agency’s final decision, at 16-17. Specifically,
the Agency noted that it excessed a whole crew of employees from Tour 2
to Tour 3 due to a decrease in mail volume. Id. at 17. The Agency noted
that employees were excessed in accordance with Article 12.4.C.4.b. of
the Collective Bargaining Agreement between the American Postal Workers
Union and the Agency, which required that it excess the employees
with the least amount of seniority first. Id. The Agency noted that
Complainant’s seniority was the lowest among Clerks on Tour 2 and, as
a result, it was obligated to move Complainant to Tour 3 first. Id. With
respect to reasonable accommodation, the Agency noted that it followed
the correct process by forwarding Complainant’s request to the DRAC. Id.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she is an individual with a
disability under the Rehabilitation Act. Complainant contends that she
has been unable to control her diabetes for several years. Complainant
contends that all of her medical documentation was not submitted to the
DRAC. Complainant also contends that the Facility Manager told her to
retire because of her medical limitations. Complainant contends that the
Facility Manager made her work on the AFSM machine 100, which violated
her medical restrictions.2
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, 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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.A. (Nov. 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”).
Disparate Treatment
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). She must
generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. 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 U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 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, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming, arguendo, that Complainant established a prima facie case
of discrimination based on race, disability, and age, we find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions,
as set forth above. Complainant now bears the burden of proving by a
preponderance of the evidence that the Agency's articulated reasons were
a pretext for discrimination. Complainant can do this directly by showing
that the Agency's preferred explanation is unworthy of credence. Burdine,
We note that the record contains a copy of the Collective Bargaining
Agreement between the Agency and the American Postal Workers
Union. Therein Article 12.4.C.4.b provides, “Full-time employees excess
to the needs of a section, starting with that employee who is junior in
the same craft or occupational group . . . shall be reassigned outside
that section but within the same craft or occupational group.” ROI,
Ex. 10, at 10. Complainant does not dispute that her seniority was the
lowest among Clerks on Tour 2. We also note that other employees were
excessed from Tour 2 to Tour 3 based on their seniority, including
employees who were Caucasian. ROI, at 31. As such, we find that
Complainant has failed to establish that the Agency’s legitimate,
nondiscriminatory reasons were pretext for discrimination.
Reasonable Accommodation
Pursuant to the Commission's regulations, federal agencies may not
discriminate against individuals with disabilities and are required
to make reasonable accommodation for the known physical and mental
limitations of qualified individuals with disabilities, unless an Agency
can show that reasonable accommodation would cause an undue hardship. See
29 C.F.R.§§ 1630.2(o) and (p); Appendix to Part 1630, Interpretive Guidance
on Title I of the Americans with Disabilities Act. A reasonable
accommodation must be effective. See U.S. Airways v. Barnett, 535
U.S. 391, 400 (2002). “[T]he word ‘accommodation’ ... conveys
the need for effectiveness” Id. “An ineffective ‘modification’
or ‘adjustment’ will not accommodate a disabled individual's
limitations.” Id. In the context of job performance, this means that a
reasonable accommodation enables the individual to perform the essential
functions of the position EEOC Guidance: Reasonable Accommodation and
Undue Hardship under the Americans with Disabilities Act (rev. Oct. 2002).
Complainant alleges that the Agency failed to reasonably accommodate
her physical disability, specifically her request to remain on Tour
2. We assume for purposes of this analysis, without so finding, that
Complainant has established that she is a qualified individual with a
disability, and therefore is entitled to reasonable accommodation. We
find, however, that she did not establish that the Agency failed to
reasonably accommodate her.
Complainant has failed to present any evidence which effectively
establishes that her disability prevents her from working on Tour 3. The
Agency is not required to provide an accommodation which Complainant fails
to establish is necessary to enable her to perform the essential functions
of her position, or to gain equal access to a benefit or privilege
of employment. Frische v. Dep't of Def., EEOC Appeal No. 0120071609
(July 1, 2009) (citing McGuffin vs. U.S. Postal Serv., EEOC Appeal
No. 01A14173 (Dec. 3, 2002)). We find that Complainant’s request to
remain on Tour 3 is unrelated to her impairment; rather, she wished to
avoid working from 4:00 p.m. to 12:30 a.m. We note that the record is
devoid of evidence indicating that Complainant’s conditions affected
her ability to work on Tour 3. Based on a review of the evidence, we find
that Complainant was not denied a reasonable accommodation, because she
failed to establish a nexus between her asserted disabling condition and
the requested accommodation. See Frische, Appeal No. 0120071609 (citing
Smith v. U.S. Postal Serv., EEOC Appeal No. 0120055839 (Oct. 18, 2007));
Brown v. U.S. Postal Serv., EEOC Appeal No. 01A42650 (Sept. 2, 2004).3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
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
June 10, 2011
Date
1 Complainant raised three additional claims, which were dismissed
by the Agency. Complainant did not raise these matters on appeal.
We exercise our discretion to review only those matters raised on appeal,
and will limit our consideration to the claims identified in the text
above as issues 1 and 2.
2 We note that Complainant filed a second brief in support of her
appeal. However, we find that Complainant's second brief, filed more
than thirty days from the date of her appeal, is untimely, and will
not be considered. See 29 C.F.R. § 1614.403(d). Complainant filed her
appeal on July 18, 2009, but her second brief in support of her appeal
was not filed with the Commission until September 8, 2009. Therefore,
the Commission declines to consider her second brief.
3 We note that Complainant argued on appeal that she was made to work
outside of her medical restrictions with regard to the AFSM 100 machine.
We note that this claim was raised for the first time on appeal, and as
such, will not be addressed. Should Complainant wish to pursue this
claim, she must contact an EEO Counselor within fifteen days of her
receipt of this decision. For timeliness purposes, the date of initial
counselor contact will be deemed to be the date on which this appeal
was filed.
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0120093198
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093198