0120113388
10-19-2012
Cathie L. Koch, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Cathie L. Koch,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113388
Hearing No. 543-2010-0037X
Agency No. 4G-870-0048-06
DECISION
Complainant filed a timely appeal from the Agency's final decision, dated June 6, 2011, concerning her equal employment opportunity (EEO) complaint. She alleged 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant worked as a full time Rural Carrier at the Agency's Coronado Station facility in Santa Fe, New Mexico. The Rural Carrier "cases, delivers and collects mail along a prescribed route." Complainant's responsibilities also include "sorting mail" and "loading mail." Record of Investigation (ROI), Position Description, Affidavit C.
On June 29, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability ("on-the-job injury"), when, on February 24, 2006, management failed to provide Complainant with a modified job assignment and instructed her not to return to duty on the following Monday.
The record shows that Complainant suffered two on-the-job injuries. Her medical restrictions limit her lifting to no more than 25 pounds. On August 6, 2003, the Agency offered Complainant a limited duty assignment, which Complainant accepted. The agreement included the duty of clearing the cage area and required four hours of casing mail. ROI, Affidavit A. The signed agreement was consistent with the work-related limitations that had also been accepted by the Department of Labor's Office of Worker's Compensation (OWCP), which provided benefits to Complainant.
The named responding officials (the Postmaster and the Manager) were aware that Complainant had a medical limitation, but averred that they did not perceive, or regard, Complainant as an individual with a disability within the meaning of the Rehabilitation Act.
On November 25, 2005, Complainant submitted a Department of Labor OWCP Limited Duty Status Report, Form CA-17 (CA-17) which listed her physical limitations to include no cage work or casing. Meanwhile, Complainant continued to work under the 2003 limited duty agreement. On January 13, 2006, Complainant asked her supervisor for a modified job assignment, with no casing required.
On February 16, 2006, Complainant had a medical examination; and her physician advised the Agency that Complainant's condition was permanent and that casing violated her medical restrictions. Following the medical examination, Complainant submitted a new Form CA-17 and requested a new modified job assignment.
On or about February 24, 2006, the Santa Fe Postmaster met with Complainant and her supervisor. Complainant advised the Postmaster that the only function that she believed that she could perform was answering the telephone. Answering the phone was a Clerk function and outside of Complainant's Rural Carrier craft. Following the discussion, the Postmaster determined that there was not sufficient work available within Complainant's restrictions to issue a new limited duty job assignment.1 The Postmaster averred the Agency could not permit her to case or deliver mail, without violating her restrictions; and Complainant acknowledged that, based on her restrictions, she could not perform the duties in the craft of Rural Letter Carriers.
On July 25, 2006, the Agency notified Complainant that it accepted the above referenced claim and informed her that if she disagreed with the defined issue, she must notify the Agency. Complainant did not object to the notice of acceptance.
Complainant maintains that two other employees were accorded better treatment, but Complainant did not identify the employees; and she did not provide information during the investigation to support her claim. The responding officials averred that that they were unaware of any other similarly situated employee who was provided a modified job assignment.
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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency decision dismissed Complainant's claim of a continuing violation. The Agency concluded that Complainant was notified of the accepted issue and did not object to the Agency's statement of the accepted issue.
The Agency then concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. With regard to the claim that she was discriminated against because of her sex, the Agency found that Complainant failed to establish the elements of her prima facie claim, because she failed to offer proof that others who were similarly situated had been treated more favorably.
With regard to the disability claim, the Agency reasoned that Complainant failed to demonstrate that she was a qualified individual with a disability within the meaning of the Rehabilitation Act, based on Complainant's documentation and physician's statements that she was unable to perform casing.
The Agency further reasoned that, assuming that Complainant established her prima facie claims, the Agency met its obligations under the Rehabilitation Act and had articulated a legitimate reason for its actions (Complainant conceded that she was unable to perform the essential elements of her Rural Carrier position and the Agency had no available work that would meet Complainant's limitations.)
CONTENTIONS ON APPEAL
Complainant maintains that she established her prima facie case and that the Agency was unable to provide a legitimate non-discriminatory reason for its action. Complainant asserts, in her brief on appeal, that she is a qualified individual, "because she satisfied the requisite skill, experience, educational and other job-related requirements of the position she held, with or without reasonable accommodation." Complainant further argues that, even if Complainant could not personally perform the essential functions of her position, it was incumbent upon the Agency to make an accommodation that would enable Complainant to perform the essential functions.
The Agency asserts that the record does not support Complainant's claim that she was a "qualified person with a disability" and, assuming that she was, the record shows that the Agency provided a reasonable accommodation. Finally, with regard to the sex discrimination claim, the Agency states that Complainant failed to establish her prima facie case or offer evidence to demonstrate that the Agency's legitimate non-discriminatory reasons were a pretext discrimination.
ANALYSIS AND FINDINGS
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, at 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").
In analyzing a disparate treatment claim, in the absence of direct evidence, a complainant must demonstrate that: (1) he is an individual with a disability; (2) he is "qualified" for the position held; (3) he was subjected to an adverse employment action; and (4) the circumstances surround the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). A similar standard applies for proof of sex discrimination. If the Agency articulates a legitimate, non-discriminatory reason for the adverse employment action, Complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for discrimination.
Turning first to the sex discrimination claim, we find that Complainant failed to establish the elements of her prima facie claim because she failed to identify similarly situated individuals who were treated better. The record does not show that there were any similarly situated male individuals seeking the accommodation that Complainant requested.
With regard to the disability claim, we note that this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2006, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
As a threshold matter, Complainant must establish that she is a "qualified individual with a disability" within the meaning of the Rehabilitation Act. An "individual with a disability" is a person who has, has a record of, or is regarded as having a physical or mental impairment whish substantially limits one or more of that person's major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. � 1630.2(j).
Even assuming for purposes of analysis that Complainant was an individual with a disability, Complainant did not offer any evidence that the Agency failed to provide a reasonable accommodation. Complainant averred that she believed that the only function that she could perform, at the time this decision was made, was answering the telephone. The record reflects that the general clerk position at the station was already occupied at that time. In addition, Complainant provided no evidence that the Agency had available vacant, funded positions with essential duties that Complainant could perform, within her stated restrictions.
Finally, the record shows that the Agency permitted Complainant to work in a modified position for several years and, after the incident at issue in this case, the Agency returned Complainant to duty on January 27, 2007, after the parties were able to reach an agreement on the permissible restrictions. The record does not demonstrate that the Agency was discriminating against Complainant because of her sex or any disability. Looking at the totality of the circumstances in this case, the record supports the Agency's decision.
CONCLUSION
Therefore, we AFFIRM the Agency's final decision finding no discrimination.
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 tends 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 (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 (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
October 19, 2012
__________________
Date
1 The record shows that, on January 27, 2007, the Agency offered Complainant a new modified duty position, which Complainant accepted.
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0120113388
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113388