01986308
08-01-2002
Yvonne Hampton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yvonne Hampton v. United States Postal Service
01986308
August 1, 2002
.
Yvonne Hampton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986308
Agency Nos. 4-H-330-1415-94
4-H-330-1517-94
4-H-330-1518-94
4-H-330-1658-94
Hearing Nos. 150-96-8197X
150-96-8205X
150-96-8206X
150-96-8209X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.<1>
ISSUE PRESENTED
The issue presented herein is whether complainant has shown that she was
discriminated against and subjected to unlawful harassment on the bases of
race (Black), color (Black), sex (Female), disability (Reflex Sympathetic
Dystrophy),<2> and reprisal (prior EEO activity) when: on May 9, 1994,
she was denied a revised work schedule; on May 17, 1994, she was yelled
at on the workroom floor and sent home; on May 19, 1994, she was placed
off the clock and her limited duty assignment was withdrawn; on May 26,
1994, her request for light duty was denied; on June 22, 1994, she was
sent for a fitness for duty examination; on July 5, 1994, she was given a
pre-disciplinary interview; and on July 28, 1994, she was issued a notice
of removal (Notice) for failure to meet the requirements of her position.
BACKGROUND
The record reveals that complainant was hired as a Letter Carrier in
August 1986. Over time, complainant suffered on-the-job injuries that
limited her ability to perform the duties of her Carrier position and
had been assigned to various agency facilities. Initially, complainant
worked in a limited duty status at the agency's post office in Hollywood,
Florida, performing one function of a Carrier position for eight hours
a day. As time went on, her injury became worse until she could no
longer perform her carrier duties. In May 1994, her limited duty status
was terminated pursuant to a Office of Workers' Compensation Program
(OWCP) decision to deny her compensation.<3> Based on OWCP's denial, the
agency terminated her limited duty and returned complainant to her Letter
Carrier position with full duties. The agency also noted that if she was
unable to perform the full duties, she needed to apply for light duty.
Accordingly, complainant filled out the forms in order to request light
duty and provided medical documentation. Her supervisor (Supervisor)
denied this request. Following the denial, the agency sent complainant
to a fitness-for-duty examination. The agency then terminated her in
July 1994 for failure to meet the physical requirements of her position
as a letter carrier. Believing she was the victim of discrimination,
complainant filed formal EEO complaints with the agency on October 30,
1994, November 21, 1994, and November 29, 1994, alleging that the agency
had discriminated against her as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination. Initially, the AJ turned to complainant's
claim of harassment. Upon review, the AJ determined that complainant
failed to establish that she was subjected to a hostile work environment.
Therefore, she addressed complainant's complaint as a claim of disparate
treatment. As to the claim of discrimination based upon race, color and
sex, the AJ found that complainant failed to establish a prima facie case
when she failed to show that others outside of her protected classes
were treated differently. As to complainant's claim of retaliation,
the AJ found that complainant did establish her prima facie case. The AJ
then concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ further concluded that complainant did
not establish that, more likely than not, the reasons provided by the
agency were a pretext for discrimination or retaliation.
As to complainant's claim of discrimination in violation of the
Rehabilitation Act, the AJ concluded that complainant failed to establish
her claim. Initially, the AJ noted that the agency did not contest that
complainant was an individual with a disability, however, it argued
that complainant was not a qualified individual with a disability.
The agency stated and the AJ agreed that complainant failed to show that
she could perform the essential functions of her letter carrier position
with or without a reasonable accommodation. Accordingly, the AJ found
that complainant failed to establish a prima facie case of disability
discrimination.
The agency's final decision adopted the AJ's finding of no discrimination.
This appeal followed. In her appeal, complainant contends that the AJ
erred in her findings. The complainant argues that she was indeed a
victim of unlawful harassment which began when she was injured while on
duty in 1986. Furthermore, complainant states that she established a
prima facie case on all the bases she raised and that the inconsistency
and contradiction in the agency's actions demonstrate pretext.
Complainant also argues that a qualified individual is not limited to
the position complainant holds but also includes a position she could
have had as a result of a reassignment. Therefore, she contends that
she is a qualified individual with a disability in accordance with the
Rehabilitation Act. Further, complainant states that the AJ erred in
finding that she was not retaliated against for her prior EEO activity.
She claims that the agency's actions were all meant to punish her for
no other reason but her filing of EEO complaints. The agency merely
requested that we affirm its decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
In essence, complainant's complaint consists of a claim of harassment;
a claim of an impermissible medical examination; and a denial of a
reasonable accommodation. Complainant alleged that the agency improperly
sent her to a Fitness For Duty examination. Complainant also claims
that she was issued a notice of removal when the agency failed to find
her a reasonable accommodation in the form of a light duty position.
The remaining elements of her complaint comprise a claim of harassment on
the bases of race, color, sex, disability, and/or reprisal. Accordingly,
the Commission will review each aspect of her complaint.
Medical Examination
The AJ did not address complainant's claim regarding the agency's request
for a Fitness-for-Duty examination. The Rehabilitation Act was amended
in 1992 to apply the standards of the Americans with Disabilities Act
(ADA) to complaints of discrimination by federal employees or applicants
for employment. See EEOC Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act (Enforcement Guidance - Disability Related Inquiries),
No. 915.002 (July 26, 2000); Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities (March 25, 1997); and EEOC
Enforcement Guidance on Preemployment Disability-Related Questions
and Medical Examinations (Enforcement Guidance - Preemployment)
(October 10, 1995). Because the restrictions on employers with
regard to disability-related inquiries and medical examinations apply
to all employees, and not just to those with disabilities, it is not
necessary to inquire whether the employee is a person with a disability.
Enforcement Guidance - Disability Related Inquiries, p. 3. Instead,
we focus on the issue of whether the agency's order that complainant
undergo a Fitness-for-Duty examination was lawful.
The Rehabilitation Act places certain limitations on an employer's
ability to make disability-related inquiries or require medical
examinations of employees only if it is job-related and consistent with
business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally, a
disability-related inquiry or medical examination of an employee may be
"job-related and consistent with business necessity" when an employer
"has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired
by a medical condition; or (2) an employee will pose a direct threat due
to a medical condition."<4> Enforcement Guidance - Disability-Related
Inquiries, at 15-16. It is the burden of the employer to show that its
disability-related inquiries and requests for examination are job-related
and consistent with business necessity. Id. at 15-23.
The record indicates that the agency sent complainant for a
Fitness-for-Duty examination five days after it had denied her request
for light duty. The record indicates that at the time of her request,
complainant's restrictions included no lifting above ten pounds, pushing,
pulling, reaching above the shoulders, driving an automobile, grasping and
fine manipulation. The record indicates that the agency sent complainant
for the examination because of their reasonable belief, following
receipt of her light duty request identifying severe limitations, that
complainant could not perform the essential functions of her position.
The Manager indicated in his affidavit that complainant �was sent for a
Fitness-for-Duty exam to determine her fitness for duty in her regular
[Carrier craft] position.� Report of Investigation, aff. B. He also
testified to this effect at the hearing. The AJ issued a finding of fact
that the agency sent complainant on the Fitness-for-Duty examination
in order to ascertain whether her limitations did in fact prevent her
from performing her carrier duties. Upon review of the record and
the AJ's findings of fact, we conclude that the agency met its burden
of showing that the examination was job-related and consistent with
business necessity. Accordingly, we find that the examination was not
a violation of the Rehabilitation Act.
Reasonable Accommodation
As stated above, complainant alleges that the agency failed to provide
her with a reasonable accommodation in the form of a light duty position.
When the agency determined that a light duty position was not available
for her and that she could no longer perform the essential functions
of her position, they removed her. Accordingly, the Commission will
address these claims as a complaint against the agency for failure to
provide a 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. The Commission also notes that
an employee must show a nexus between the disabling condition and the
requested accommodation. See Wiggins v. United States Postal Service,
EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
she is an "individual with a disability." We shall assume, arguendo,
that complainant established that she is an individual with a disability
covered by the Rehabilitation Act.
Complainant also must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. � 1630.2(m). The agency argues
and the AJ determined that complainant is not a qualified individual
with a disability because she could not perform the core duties of her
letter carrier position. Complainant does not contest that she cannot
perform the essential functions of her Carrier position with or without a
reasonable accommodation. Accordingly, we are satisfied that complainant
is not qualified as to her letter carrier position.
Contrary to the AJ's decision, the discussion of �qualified� does not
end at complainant's carrier 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. Accordingly, the agency should have
considered reassignment in this case. We note that because this case
arose prior to June 20, 2002, the Commission will apply 29 C.F.R. �
1614.203(g), its prior regulation regarding reassignment.<5>
The record indicates that complainant had been on limited duty until May
19, 1994, when OWCP terminated her claim. The agency then reassigned
complainant back to her Letter Carrier position without restrictions.
Subsequently, she requested light duty on May 24, 1994. In her request,
she indicated that she could do intermittent lifting for four hours
up to ten pounds; otherwise, she was not to do any pulling, pushing,
heavy lifting, or reaching or working above her shoulders. The medical
documentation dated May 23, 1994, was provided with her request and her
doctor noted that she was fit for light duty without hazard to herself
or others. The Supervisor testified that she reviewed complainant's
request for light duty and summarily denied it on May 26, 1994. The
denial lacked any specific explanation. At the hearing, the Manager
and the Supervisor testified that there was no position available
for complainant in the Carrier craft. The Commission finds that the
investigative record clearly supports the Supervisor's and Manager's
testimonies that complainant could not have performed any duties in the
Carrier craft with or without a reasonable accommodation. HT, at 343.
Since complainant could not have been reassigned to another position in
the Carrier craft, we find that reassignment to a position outside the
Carrier craft would have been the only possible reasonable accommodation.
Therefore, we turn to the issue of reassignment outside the craft.
The complainant has an evidentiary burden in such reassignment cases
to establish that it is more likely than not (preponderance of the
evidence) that there were vacancies during the relevant time period into
which complainant could have been reassigned. Clearly, complainant can
establish this by producing evidence of particular vacancies. However,
this is not the only way of meeting complainant's evidentiary burden.
In the alternative, complainant need only show that: (1) he or she was
qualified to perform a job or jobs which existed at the agency, and (2)
that there were trends or patterns of turnover in the relevant jobs so
as to make a vacancy likely during the time period.
Upon review of the record, we find that complainant failed to satisfy
her burden. Complainant failed to argue that there were vacancies at
the time of her request outside the Carrier craft. Complainant has
provided evidence that she received training in Computerized Labeling
Address Sequence System and Address Information Management Systems and
performed duties outside of the Carrier craft. However, complainant
has not provided any other evidence to support an assertion that, had
the agency searched outside the Carrier at the relevant time, it would
have found a vacant position to which she could have been reassigned.
Based upon our review, we conclude that complainant was not a qualified
individual with a disability. Accordingly, the Commission finds that
complainant failed to establish her claim that the agency failed to
provide her with a reasonable accommodation.
Remaining Claims of Discrimination
Complainant also alleged that she was subjected to disparate treatment
and unlawful harassment on the bases of race, color, sex, disability,
and reprisal when: on May 17, 1994, she was yelled at on the workroom
floor and sent home; on May 19, 1994, she was placed off the clock and
her limited duty assignment was withdrawn; on May 26, 1994, her request
for light duty was denied; on June 22, 1994, she was sent for a fitness
for duty examination; on July 5, 1994, she was given a pre-disciplinary
interview; and on July 28, 1994, she was issued a notice of removal
(Notice) for failure to meet the requirements of her position. After a
careful review of the record, we discern no basis to disturb the AJ's
finding of no discrimination as to these remaining issues. The findings
of fact are supported by substantial evidence, and the AJ correctly
applied the appropriate regulations, policies, and laws to all claims
save the claim covered under the Rehabilitation Act.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 1, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 The record indicates that complainant's condition affects her right
shoulder.
3 The record indicates that OWCP denied complainant's claim for
compensation based on a reoccurrence of a condition which was filed on
January 20, 1993. The denial was based on complainant's failure to
provide any medical documentation to substantiate her claim that her
condition was causally related to her original occupational disease
claim in 1986. It appears that the only medical documents available
to OWCP were from complainant's original claim, the most recent being
dated July 1, 1991.
4 "Direct threat" means a significant risk of substantial harm that
cannot be eliminated or
reduced by reasonable accommodation. 29 C.F.R. � 1630.2(r).
5 The agency is advised that 29 C.F.R. � 1614.203(g), which governed
and limited the obligation of reassignment in the Federal sector, has
been superseded and no longer applies. 67 Fed. Reg. 35732 (5/21/02), to
be codified as 29 C.F.R. � 1614.203(b). The ADA standards apply to all
conduct on or after June 20, 2002, and emphasize, among other things, a
broader search for a vacancy. The ADA regulations regarding reassignment
can be found at 29 C.F.R. �� 1630.2(o) and 1630.9. Additional information
can be found in the Appendix to the ADA regulations and in the EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (March 1, 1999) at Questions 25-30.
These documents are available on the EEOC's website at www.eeoc.gov.