0120063181
11-26-2007
Carmelita R. Delong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carmelita R. Delong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200631811
Hearing No. 350-2005-00248X
Agency No. 1F-853-0025-05
DECISION
Complainant filed an appeal from the agency's March 29, 2006 final
decision 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. For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Processing and Distribution
Center facility in Phoenix, Arizona. On April 13, 2005, complainant filed
an EEO complaint alleging that she was discriminated against on the bases
of disability (arms and shoulders) and reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973 when:
On March 12, 2005, complainant was denied a reasonable
accommodation by being forced to accept a job offer that exceeded
her physical/medical restrictions.
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 but subsequently withdrew her request. Consequently,
the agency issued a final decision on March 29, 2006, pursuant to 29
C.F.R. � 1614.110(b) concluding that complainant failed to prove that
she was subjected to discrimination as alleged.
In its final decision, the agency found that complainant had the following
work restrictions as of November 2004. Complainant was to do no lifting
or carrying over 5 pounds; no pulling/pushing over 12 pounds; seldom
continuous and one hour of intermittent reaching above shoulder; and no
continuous computer work. From August 19, 2004 until March 12, 2005,
complainant had been assigned to Rio Salado Station, where she worked in
a modified position as a Maintenance Support Clerk. On March 12, 2005,
in a meeting with complainant, her immediate supervisor (S1), her second
level supervisor (S2) and the acting manager of plant operations (M1),
the agency presented to complainant a job offer in the section of her
current bid position (the box section), that included the following job
duties: lifting 1-5 pounds; sitting; standing and walking for 7 or 8 hours
intermittently; bending, stooping, twisting for 1-hour intermittently;
simple grasping and fine manipulation for 1-2 hours intermittently; and no
reaching above the shoulder. The agency noted that complainant initially
rejected the job offer, but ultimately accepted it. Complainant worked
in the position for a few days, and then on March 18, 2005, complainant
worked for about an hour, and then filed a report of recurrence of injury
and left work.
The agency found that complainant failed to identify any position
for which she could perform the essential functions with or without
an accommodation. Accordingly, the agency found that complainant was
not covered by the Rehabilitation Act in that she was not qualified for
any position that she could perform within her restrictions.
With respect to reprisal, the agency found that complainant did not
establish a prima facie case of reprisal. While the agency acknowledged
that complainant had previously participated in the EEO process, the
agency found that complainant did not show that she was subjected to
any adverse employment action. Rather, the agency had accommodated
complainant's recovery from shoulder surgery in 2004 and had made a
good faith effort to return complainant to her original pay location
with a job offer within her medical restrictions. Because complainant
had not been subjected to any adverse employment action motivated by
reprisal, complainant failed to put forth a prima facie case of reprisal
discrimination.
The agency therefore found that no discrimination occurred as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant claims that the only reason that the agency
abruptly removed complainant from her modified assignment at the Rio
Salado station was discrimination. Specifically, complainant points out
that all prior job offers had come from the injury compensation office
(ICO), and were signed by an injury compensation specialist. However, in
March 2005, at the time that identified management officials were involved
in supplying information for a supplemental investigation being conducted
in connection with a settlement agreement that resolved complainant's
prior matter (agency case number 1F-853-0011-032), the same officials
determined that complainant should be removed from the Rio Salado position
and returned to the box section and to a job that complainant's physicians
had rejected on repeated occasions. Complainant contends that the agency
has supplied no business reason for removing complainant from her work at
Rio Salado, but instead has offered conflicting explanations for events
that triggered its decision. Complainant points out that the agency says
on the one hand that the March 2005 job offer was created by the injury
compensation specialist who suggested that one year after complainant's
shoulder operation she should be ready to return to regular work with
accommodations. On the other hand, the agency claims the job offer was
created by complainant's immediate supervisor (from the box section)
who was directed to return complainant to the box section by the (former)
Manager of Distribution Operations. Complainant argues that the evidence
does not support the first explanation for, among other reasons, the March
2005 job offer is signed by complainant's supervisor and does not appear
(as did the real job offers from the ICO) on appropriate letterhead.
The second explanation, complainant points out, violates the settlement
agreement achieved in agency case number 1F-853-0011-03.3 Complainant
submits that reprisal motivated the agency's decision to remove her from
her modified position and force her to sign a job offer in the section
her physicians had rejected before.
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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant matter, we find that complainant fails to set for a prima
facie case of reprisal discrimination with respect to the March 2005 job
offer. The record shows that complainant previously participated in the
EEO process and that agency management was aware of that participation.
However, we do not find that the agency's decision to offer complainant a
position that it believed to be consistent with her medical restrictions
equates to adverse treatment likely to deter complainant from engaging
in the EEO process or designed to punish her for having done so. While
the timing of the agency's most recent job offer in March 2005 likely
coincided with the agency's efforts to comply with our decision in EEOC
Appeal No. 01A45486, the record shows that complainant's history of EEO
activity spanned many years and that the agency presented complainant
with job offers at various times, provided complainant with light or
limited duty in conjunction with her exercise of rights through the
Office of Workers' Compensations Programs and modified her duties as
her needs and, arguably, as business operations required on numerous
occasions during the same period. The agency would have been challenged
to provide complainant with any job modification or reassignment at
any time following her injuries and medical treatment that did not fall
in close proximity to complainant's protected activity. We find that
the agency tried on multiple occasions to return complainant to the box
section with job duties that did not violate her physical limitations
and that the offer presented in March 2005, was simply another attempt,
no more prompted by complainant's EEO activity than the other attempts
to provide her with regular, accommodated job duties in the box section
had been.
In order to be entitled to protection from the Rehabilitation Act under
any theory of discrimination, complainant must make the initial showing
that she was a "qualified individual with a disability." A "qualified
individual with a disability" is an individual with a disability who
satisfies the requisite skill, experience, education and other job
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of the position. 29 C.F.R. � 1630.2(m).
We find that complainant has not shown by a preponderance of the evidence
that she was a "qualified" individual with a disability. In so finding,
we note that there is no dispute that complainant could not perform the
essential duties of the Mail Handler bid position that she held in the
box section. We also note that an employer is not required to create a
job for a disabled employee. See Woodard v. United States Postal Serv.,
EEOC Appeal No. 01A21682 (July 29, 2003); EEOC Enforcement Guidance:
Workers Compensation and the ADA, EEOC Notice No. 915.002 at 21 (September
3, 1996). It is complainant's burden therefore, to make the showing that
there was another vacant, funded position, for which she was qualified
and to which she could have been reassigned. Although complainant's
physicians reported that she was qualified for the Maintenance Support
Clerk (a modified position) in Rio Salado, in which she had been working,
nothing in the record evidence indicates that such position was a vacant,
funded position.
CONCLUSION
We AFFIRM the agency's final decision 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 26, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Complainant has filed an appeal from the agency's final decision in
that case, docketed as EEOC Appeal No. 0120080405.
3 In Delong v. USPS, EEOC Appeal No. 01A45486 (Jan. 13, 2005),
the Commission ordered the agency to (among other things) conduct
a supplemental investigation into the agency's efforts to provide
complainant with flexibility for a variety of jobs outside of the
box section before returning complainant to work in the box section.
In DeLong v. USPS, EEOC Appeal No. 01A53582 (July 25, 2006), req. for
reconsideration denied, EEOC Request No. 05A60925 (Sept. 5, 2006),
the Commission found the agency breached the settlement agreement dated
April 8, 2003 and ordered the agency to reinstate the settled complaint
from the point where processing had ceased.
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0120063181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063181