01992169
03-25-2002
Mary Burgess, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Mary Burgess v. United States Postal Service
01992169
March 25, 2002
.
Mary Burgess,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01992169
Agency Nos. 4F-945-0025-98; 4F-945-0200-97
Hearing Nos. 370-98-2315X; 370-98-2402X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant initially alleged she was discriminated against on the basis
of disability (bilateral carpal tunnel syndrome) when on May 30, 1997,
she was issued a Letter of Warning (LW). Complainant also alleged she
was discriminated against on the basis of disability when on August
29, 1997, management failed to accommodate her work-related disability
when her work station was rearranged. For the following reasons, the
Commission AFFIRMS the FAD.
During the relevant time, complainant was employed as a Modified General
Clerk at the agency's Mission Peak Annex of the Fremont, California, Post
Office (�facility�). Regarding complainant's initial allegation (Agency
No. 4F-945-0200-97), the record indicates that she was issued a LW on May
30, 1997, for failure to follow instructions/provide requested medical
documentation.<2> Regarding complainant's second claim of discrimination
(Agency No. 4F-945-0025-98), the record indicates that she was diagnosed
with permanent bilateral carpal tunnel syndrome in 1988, and she accepted
the agency's offer of a Modified General Clerk position at the facility
in 1991. Complainant's restrictions include no lifting above shoulder
level, no repetitive hand/wrist work, no power gripping, no repetitive
pushing/pulling, no fine manipulation and no lifting over five pounds
above waist level. We note that the record indicates her new position
was within her physical restrictions. Complainant's Exhibits 16, 23.
Complainant alleged that during the time frame at issue, the Mission
Peak Annex was temporarily moved during construction of a new Annex.
On or about June 2, 1997, during a several week absence of complainant,
the work stations of complainant and other employees were rearranged.
Complainant alleges that management failed to reasonably accommodate
her disability when they rearranged her work station. Complainant filed
formal EEO complaints with the agency on August 9, 1997 and November 5,
1997, alleging that the agency had discriminated against her as referenced
above. The complaints were consolidated and, at the conclusion of the
investigation, complainant received 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.
Regarding complainant's initial claim of discrimination, the AJ concluded
that complainant failed to establish that her disability was a factor
when she was issued the LW. The AJ further found that complainant did
not provide evidence to show that a similarly situated employee, not in
her protected group, was treated differently by the facility manager
(FM) under similar circumstances. The AJ noted that the FM testified
that he issued the LW after complainant stated that she could not answer
the telephone, and he sought an update of her restrictions to determine
if there had been any change in her physical restrictions. The FM
stated that answering the telephone was a job duty within complainant's
restrictions, and that complainant's response to his request for an
update on her restrictions did not provide the information he requested,
leading to the LW.
Turning to complainant's second claim of discrimination, the AJ found
that the evidence of record establishes that when the agency accommodated
complainant's physical restrictions with her assignment to the Modified
General Clerk position in 1991, her work station was arranged so she
could perform her job duties. The AJ noted that the work stations of
complainant and other facility employees were rearranged in June 1997,
when the Mission Peak Annex was relocated, and that complainant was on
leave during that time. Complainant returned in July 1997, and thereafter
was on leave from September 9, to December 15, 1997. After complainant
notified the agency of her need to have her work station rearranged,
the area was returned to its original configuration by October 23, 1997.
The AJ credited the testimony of the FM and complainant's supervisor
when they stated that they were unaware that complainant's work area was
required to be arranged in a certain way. In addition, the AJ found
that complainant waited about four (4) weeks after she began working
in the rearranged work station before she complained to management.
As noted above, the work station was then reconfigured by sometime in
October 1997. The agency's final decision implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. The Commission finds that
even assuming, arguendo, that complainant was a qualified individual with
a disability, she failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward her disability.
The record contains substantial evidence in support of the AJ's finding
that complainant failed to establish that the LW was issued due to
discriminatory animus based on complainant's disability and that the FM
credibly testified that he issued complainant the LW after she failed
to provide adequate medical documentation in response to his requests
for information to determine whether her physical restrictions had
in fact changed such that she could no longer answer the telephone.
Investigative Report, at 2-4, 6; Hearing Transcript at 159-165, 168,
175, 216-222.
In addition, the record contains substantial evidence in support of the
AJ's finding that the work stations of complainant and other facility
employees were rearranged when the Mission Peak Annex was temporarily
moved, and that after complainant notified the agency of her need to
have her work station arranged in a certain way to accommodate her
carpal tunnel syndrome, her work station was returned to its original
configuration in October 1997.<3> Substantial evidence of record further
supports the AJ's finding that while complainant stated she had difficulty
performing her duties while she worked in the rearranged work station
for four weeks, she did not immediately notify facility management that
her work station needed to be returned to its original configuration.
Hearing Transcript, at 210-211, 247, 249. After considering the evidence
of record, we find that complainant has failed to establish either
that her work station was rearranged due to discriminatory animus based
on her disability or that the agency failed to reasonably accommodate
complainant. Regarding the agency's duty to accommodate complainant,
we note that the reconfiguration involved a number of work stations,
that complainant did not raise any objections for some weeks thereafter
and that her work station was reconfigured after her physician indicated
that complainant's current condition would be better served by doing so.
We thus discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including complainant's contentions on
appeal and arguments and evidence not specifically addressed in this
decision, we affirm the agency's FAD.
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
March 25, 2002
__________________
Date
1 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.
2 The LW was reduced to an official discussion on June 27, 1997, after
complainant filed a grievance.
3 While complainant contends that facility management initially denied
her request to return her work station to its original configuration upon
her return to work in July 1997, the record indicates that the facility
manager was unaware that complainant's work area was rearranged in 1991
to accommodate her limitations. Hearing Transcript at 194. The record
further indicates that complainant's work station was returned to its
original configuration when the facility Postmaster was informed that
complainant's physician indicated problems with the rearrangement.
Hearing Transcript at 135, 137, 139-40.