Annette W. Jolly, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionAug 13, 2002
01A00285 (E.E.O.C. Aug. 13, 2002)

01A00285

08-13-2002

Annette W. Jolly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


Annette W. Jolly v. United States Postal Service

01A00285

August 13, 2002

.

Annette W. Jolly,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 01A00285

Agency Nos. 4-H-350-0150-97, 4-H-350-0205-97, 4-H-350-0119-98,

4-H-350-0121-98

Hearing Nos. 130-99-8108X, 130-99-8105X, 130-99-8107X, 130-99-8106X

DECISION

Complainant timely initiated this appeal from the agency's final

decision concerning her four above-captioned equal employment opportunity

(EEO) complaints 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. Complainant alleges in

her complaints that she was subjected to unlawful discrimination when:

(1) from January 28, 1997, through March 22, 1997, she was not provided

with a limited duty assignment;

(2) on April 28, 1997, she was instructed to perform duties that violated

her medical restrictions;

(3) on December 31, 1997, she received a letter of warning for

unsatisfactory work performance, on January 5, 1998, she was charged

with being AWOL, and on January 22, 1998, she was issued a letter of

warning for unsatisfactory work performance and AWOL; and

(4) on January 9, 1998, she was not permitted to work in a light duty

assignment as stipulated by her physician.

Complainant asserts in her complaint that the agency was unlawfully

motivated in the actions alleged above on the basis of her physical

disability (ulnar neuropathy). She further contends that the agency was

unlawfully motivated by a discriminatory animus toward her race (White)

in the action alleged in complaint (2), by a discriminatory animus toward

her mental disability in the actions alleged in complaints (3) and (4),

and in retaliation for her prior EEO activity in the actions alleged in

complaints (1), (3), and (4).

At the conclusion of the agency's investigation into her complaints,

complainant received a copy of the investigative reports and requested

a hearing before an EEOC Administrative Judge (AJ). The AJ issued a

decision without a hearing, finding no discrimination. The AJ found

that the matter was appropriate for resolution without a hearing,

as there existed no genuine dispute over any fact material to the

complainant's claims. Turning to the merits of the claims, the AJ

found that complainant had established that she was an individual

with a disability, but that she had nevertheless failed to establish

a prima facie case of race or disability discrimination, or a prima

facie case of retaliation for prior protected activity. The AJ noted

that complainant had failed to present any evidence that she had been

subjected to unlawful disparate treatment as claimed. The AJ recommended

that the agency enter a finding of no discrimination, and the agency

heeded this recommendation and made a finding of no discrimination in

its FAD. This appeal followed, in which neither complainant nor the

agency submitted arguments in support of their respective positions.

In claims such as those presented by complainant, which allege disparate

treatment based upon race and disability, and in retaliation for

participation in protected EEO activity, and where there is an absence

of direct evidence of such discrimination or retaliation, the allocation

of burdens and order of presentation of proof is a three-step process.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First,

complainant must establish a prima facie case of discrimination by

presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination; i.e., that a prohibited consideration was

a factor in the adverse employment action. Kimble v. Department of

the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency

must articulate a legitimate, nondiscriminatory reason for its actions.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

If the agency is successful in meeting its burden, complainant must

prove, by a preponderance of the evidence, that the legitimate reason

proffered by the agency was a pretext for discrimination. Id. at 256.

However, the ultimate burden of persuading the trier of fact that the

agency intentionally discriminated against complainant remains at all

times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 143 (2000).

Our review of the record on appeal<1> reveals that complainant failed

to present evidence that any of the agency's actions were in retaliation

for complainant's prior EEO activity or were motivated by discriminatory

animus toward her race or disabilities. We also note that the agency

articulated legitimate, nondiscriminatory reasons for its actions, and

that complainant failed to prove that these articulated reasons were

merely a pretext for unlawful discrimination. See Reeves, 530 U.S. at

143 (noting that �[a]lthough intermediate evidentiary burdens shift

back and forth under [the McDonnell Douglas] framework, the ultimate

burden of persuading the trier of fact that the [agency] intentionally

discriminated against the [complainant] remains at all times with the

[complainant]�). Accordingly, we discern no basis to disturb the decision

of the AJ or the agency. Therefore, after a careful review of the record,

it is the decision of the Commission to 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

August 13, 2002

Date

1 As this is an appeal from a FAD issued

without a hearing, pursuant to 29 C.F.R. � 1614.110(a), the AJ's findings

of fact and the agency's final decision are subject to de novo review

by the Commission. 29 C.F.R. � 1614.405(a)