0120060946
12-07-2007
Myra E. Pritchard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Myra E. Pritchard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200609461
Hearing No. 160-2004-00547X
Agency No. 4B021000102
DECISION
On November 15, 2005, complainant filed an appeal from the agency's
November 3, 2005 final order 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk in the agency's Processing and Distribution
Center in Boston, Massachusetts. Complainant contacted an EEO Counselor
and filed a formal EEO complaint on October 22, 2001, alleging that she
was discriminated against on the basis of disability (right arm injury
involving the radial tunnel nerve)2 when: (1) since July 28, 2001,
management denied her a reasonable accommodation and improperly charged
her with 4 hours of absence without leave (AWOL) per shift instead of
leave without pay; and (2) her privacy rights were violated when an
e-mail concerning her medical condition was circulated on July 28, 2001.
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). Complainant timely
requested a hearing and the AJ held a hearing and issued a decision on
October 31, 2005, finding no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant
failed to prove that she was subjected to discrimination as alleged.
Complainant makes no arguments on appeal.
STANDARD OF REVIEW
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and
(p). In order to be entitled to protection from the Rehabilitation Act,
complainant must make the initial showing that she was a "qualified
individual with a disability."
Here, assuming, without finding, that complainant is a qualified
individual with a disability, we concur with the AJ's finding
that complainant has not shown that the agency failed to reasonably
accommodate her. The record shows that complainant testified that from
March 1999 she was assigned to a limited duty position, and that the
duties of that position remained essentially the same from 1999 through
the period at issue. (Hearing Transcript, 33-34). Pursuant to updated
medical documentation, beginning on May 11, 2000, complainant's hours were
reduced to four per shift, with the remaining four hours being covered by
Federal Employee Compensation Act (FECA) benefits. (R.O.I., Exhibit 10).
The record also shows that complainant acknowledged in her testimony that
management never required her to work outside her medical restrictions.
(Report of Investigation, Exhibit 7; HT, 38-40). We also find that,
with respect to complainant's contention that the agency improperly
charged her with AWOL for the hours being covered by FECA benefits,
complainant's supervisor (S1) testified that this was done in error.
S1 stated that when she first became complainant's supervisor she was
unaware of why complainant was only working four hours per shift and did
not know how to properly document complainant's absences. S1 stated
that she charged complainant with AWOL for a few days, but when she
"got the clarification as to the extent of why [complainant] was working
four hours...[she] switched her back to LWOP." (HT, 60). Accordingly,
we concur with the AJ's conclusion that complainant failed to show that
the agency did not provide her with a reasonable accommodation under
the Rehabilitation Act.
Finally, with respect to claim (2), our regulations provide that
information obtained regarding the medical condition or history of any
employee shall be treated as a confidential medical record. Id. The
Commission regards documentation of the individual's diagnosis or
symptoms as confidential medical information. ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations
(October 10, 1995) at 22 n.26. However, supervisors and managers may be
informed regarding necessary restrictions on the work or duties of the
employee and necessary accommodations. 29 C.F.R. � 1630.14(c). Here, we
concur with the AJ's finding that the agency's July 28, 2001 email does
not constitute a violation of the Rehabilitation Act. This email did
not contain any specific information regarding complainant diagnosis or
symptoms, but deals strictly with complainant's medical restrictions and
necessary accommodations. (R.O.I., Exhibit 5). Further, the email was
sent only to those individuals responsible for supervising complainant who
needed to be advised of complainant's medical restrictions. Therefore,
we discern no basis to disturb the AJ's decision and we affirm the
agency's final order.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 7, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 In her formal complaint, complainant also alleged discrimination on
the basis of reprisal for prior protected EEO activity, but subsequently
withdrew that basis during the hearing. (Hearing Transcript, 42-43).
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0120060946
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036