0120083466
01-13-2009
Victoria Y. Caffey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Victoria Y. Caffey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083466
Agency No. 1J-601-0009-07
Hearing No. 440-2008-00053X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 26, 2008, 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., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Complainant alleged that the agency discriminated
against her on the bases of race (Moor), color (Black), disability (neck,
right arm, and knee), and retaliation (prior EEO activity) when:
1. She was sent home on April 20, 24-26, 2007, and May 1-2, 2007
because of her medical restrictions.
2. On July 8, 2007, she was issued a Letter of Warning (LOW) for
Failure to Follow Instructions. (retaliation)
At all times relevant to this case, complainant was a Full Time
Mail Processing Clerk at the Carol Stream, Illinois Processing and
Distribution Center. Complainant asserted that her medical conditions
consisted of a right wrist sprain, right hip contusion, cervical strain
and contusion, cervical ponderosas and bulging disks at C-3 and C-7 that
was first diagnosed in 2001. Complainant provided medical documentation
to management in February, March, and April 2007. On April 11, 2007,
her physician indicated that she could continue on light duty working
six hours per day for three days per week and eight hours per day for
two days per week. Additionally, the medical certificate indicated
that complainant had a ten pound restriction on lifting and pulling,
should avoid working in a cold environment, should be granted a day or
afternoon shift, and should be allowed to get up and walk every hour for
five to ten minutes. Complainant's physician also indicated that her
condition was permanent and that her current restrictions were to be in
place from April 11, 2007, through May 11, 2007, with reevaluation to be
conducted within four to five weeks. Complainant alleges that she was
sent home on the days at issue because management maintained that they
were unable to accommodate her restrictions but two other employees who
were also on light duty were allowed to stay and work.
Regarding the LOW, on July 7, 2007, complainant's supervisor asked her
several times to move to the Letter Cases. Complainant indicated that
she would go but wanted to talk to a "titled" supervisor. The supervisor
responded that she was the supervisor. Complainant then spoke with the
Acting Manager and asked him to tell the supervisor that she needed to
be professional when giving orders to her subordinates. Complainant
maintains that she at no time disobeyed the supervisor's instructions
and indicates that she reported to the Letter Cases within five minutes
of being instructed to do so. Nevertheless, complainant was issued a
Letter of Warning on July 8, 2007, charging her with Failure to Follow
Instructions. Thereafter, complainant filed the instant complaint.
Following an investigation by the agency, complainant requested a
hearing before an EEOC Administrative Judge (AJ). The AJ remanded the
case to the agency because complainant failed to follow the AJ's Orders.
The agency issued a final agency decision (FAD) finding no discrimination.
The agency found that assuming arguendo that complainant established
a prima facie case of discrimination as to all bases, the agency
had articulated legitimate nondiscriminatory reasons for its actions,
namely, that complainant was sent home because there was no work available
within her medical restrictions. Moreover, the agency indicated that the
comparators mentioned by complainant were not similarly situated to her
because they were limited duty employees and not light duty employees
like complainant.1 The agency also maintained that the comparators did
not have the same restrictions that complainant had.
With regard to the LOW, the agency indicated that it was issued because
complainant failed to follow instructions. Specifically, the agency
maintained that complainant had to be instructed to report to the Letter
Cases three times prior to asking to speak to a "titled" supervisor.
The agency indicated that complainant requested a nurse's slip from
her supervisor and wanted that done before she moved as instructed.
The agency maintained that it was not until complainant spoke with a
different manager that she finally complied. The agency asserted that
complainant's race, color, and prior EEO activity2 had nothing to do
with its actions. With regard to both issues, the agency maintained
that complainant failed to show that the agency's articulated legitimate
reasons were pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
The Commission agrees that even if we assume arguendo that complainant
established a prima facie case of discrimination as to all bases3, we
agree that the agency articulated legitimate nondiscriminatory reasons
for its actions, namely, that complainant was sent home because there
was no work available within her restrictions. Additionally, the record
shows that complainant was issued the LOW because she failed to follow
instructions after repeated requests to move to another location.
Further, to the extent that complainant is alleging that the agency
failed to provide her with a reasonable accommodation for her disability
we find the agency complied with its obligation. The record reveals that
complainant was not sent home due to lack of work within her restrictions
until her physician modified her restrictions so severely that there was
no work available to fit within the restrictions. The record reflects
that management requested that complainant see her physician for revised
restrictions.
Finally, we find that complainant has not demonstrated in any way that
the agency's reasons were pretext for discrimination. Accordingly,
the Commission finds that the evidence of record does not establish that
discrimination occurred. The agency's FAD is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 13, 2009
__________________
Date
1 A limited duty employee is one who suffered a work-related injury. The
agency has a legal obligation to provide work to limited duty employees.
A light duty employee is one who suffered a non-work related injury. The
agency's obligation to an employee on light duty is to provide them work
if it is available.
2 Complainant's supervisor indicated that she was not aware of
complainant's prior EEO activity.
3 For the purposes of analysis only, we assume that complainant was a
qualified individual with a disability.
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0120083466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083466