Antoinette Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01a00215 (E.E.O.C. Mar. 7, 2000)

01a00215

03-07-2000

Antoinette Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.


Antoinette Smith, )

Complainant, )

) Appeal No. 01A00215

v. ) Agency No. 1H-321-0034-97

) Hearing No. 150-97-8455X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W Areas), )

Agency. )

)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of race (African-American),

sex (female), and reprisal (prior EEO activity), in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et

seq.<1> Complainant alleges she was discriminated against when: (1)

on December 14, 1996, she was placed on Administrative Leave; and (2)

on January 14, 1997, she was issued a Notice of Removal. The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405). For the following reasons, the Commission

AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Mailhandler at the agency's Tallahassee, Florida facility.

On or about September 13, 1996, complaint sustained an on-the-job injury

when she fell on the workroom floor. Complainant initially told agency

officials that she fell off a pallet. Later, complainant alleged that

a co-worker pulled a pallet into her intentionally. The agency then

initiated an investigation into the incident, but could not determine

who was at fault.

On or about September 19, 1996, complainant went to see her personal

physician. The physician provided complainant with a CA-17 form

indicating she could not return to work until her follow up exam on

October 9, 1996. On October 9, 1996, complainant was returned to full

duty. On October 10, 1996, complainant called in sick, complaining of

pain, and requested continuation of pay. Complainant did not work from

October 10, 1996 until October 23, 1996. On October 24, 1996, complainant

returned to work. After one hour, complainant advised her supervisor

she could not work due to the pain. Thereafter, complainant called in

sick every night, and then brought in medical documentation releasing

her from work until November 13, 1996. On October 13, 1996, complainant

provided another CA-17 from her physician, releasing her from work until

December 6, 1996. Complainant returned to work on December 10, 1996.

Soon thereafter, complainant's supervisor (Black female) informed her

that she was being placed on administrative leave for perpetrating

an accident to go to school. The AJ found that on October 1, 1996,

the Plant Manager (White male) contacted the Postal Inspectors and

requested an investigation into complainant's injury. Specifically, the

Plant Manager requested the investigation because prior to her injury,

complainant requested, and was denied, a leave of absence to attend

school from August 24, 1996 until December 14, 1997. The Plant Manager

testified that he contacted the Postal Inspectors because complainant's

absence coincided with her leave of absence request. Furthermore,

complainant did not initially inform agency officials that the accident

was intentionally caused by another individual.

As part of their investigation, the Postal Inspector conducted video

surveillance of complainant's activities throughout October and

November 1996. Complainant's supervisor then reviewed the video tape

and conducted her own investigation. Specifically, the supervisor

reviewed the Notice of Traumatic Injury completed by complainant, spoke

with the Safety and Injury Compensation Specialist, and the Plant Manager.

Upon review of the video, the Supervisor found that complainant repeatedly

violated her physician's restrictions by performing activities, such as

driving a car, carrying packages, walking up and down stairs, shopping,

attending classes, and carrying books. As a result of the investigation,

complainant was placed on administrative leave pending her removal

charges.

During conversations with the Injury Specialist, the supervisor determined

that between October and November, complainant refused limited duty

work within her restrictions, such as, answering phones, handling

nixie mail<2>, or other work accomplished while sitting. Specifically,

complainant testified that, �she was unable to do anything but take care

of her girls.�

In light of the evidence on the videotape, as well as the fact

complainant refused limited duty work as it was contrary to her

work restrictions, the supervisor spoke to the Plant Manager about

administrative leave and removal. The Plant Manager agreed with the

supervisor's determination, and concluded that complainant was attending

school while on sick leave. The Plant Manager also agreed with the

determination in light of complainant's sick leave slips which her

physician completed. Specifically a sick leave slip dated November 4,

1996 approved complainant's absences prior to the date she went to see

the physician. The Plant Manager suspended complainant and placed

her on administrative leave. She was then terminated for violating

her work restrictions. The Plant Manager testified that, based upon

his observations on the video, complainant was capable of performing

limited duty work, but refused to do so.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on January 29,

1997. 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

recommended decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of race or sex discrimination because she failed to demonstrate

that similarly situated employees not in her protected classes were

treated differently under similar circumstances. Complainant identified

several individuals who she alleged were involved in accidents at work,

but were not surveilled by postal inspectors, placed on administrative

leave, and terminated. The AJ found however, that with exception of

one comparative (white male), no other employee had requested a leave of

absence prior to his or her injury, as complainant had done. Therefore,

the AJ found that these individuals were not similarly situated because

their accidents did not occur under suspicions circumstances. In fact,

the Plant Manager testified that on the same day he called the postal

inspectors about complainant's accident, he referred another employee

for investigation (white male).<3> In sum, the AJ found that the

circumstances surrounding the other comparatives were not similar to

complainant's such that an inference of discrimination could be inferred.

The AJ did find, however, that complainant established an inference of

reprisal discrimination. Specifically, she showed the requisite causal

connection between her prior EEO activity, and the adverse action herein.

The AJ then concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions, namely, that the supervisor

determined that complainant should be placed on administrative leave and

terminated because she believed complainant was guilty of misrepresenting

the extent of her injuries. The supervisor relied on her investigation,

which included viewing the videotape. This videotape, which was also

viewed by the AJ, showed complainant engaged in activities while her

physician represented that she was totally incapacitated. After learning

complainant refused limited duty work, the supervisor determined

complainant was exaggerating her injuries to avoid coming to work.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination or retaliation. In reaching this conclusion, the AJ found

that although complainant's physician viewed the videotape and determined

complainant was not violating her work restrictions, this determination

came after complainant had already been terminated. Although complainant

argued that his determination as to complainant's work restrictions

was based on the regular Mailhandler position, complainant could not

resolve why her physician did not permit her to answer phones and work

nixie mail. The AJ found that, more likely than not, complainant did

not inform her physician as to the availability of limited duty work.

After viewing the video and listening to the testimony of the witnesses,

the AJ determined that agency officials were reasonable in concluding

complainant was violating her work restrictions. Accordingly, the

AJ found that complainant failed to persuade her that the agency

discriminated against her as alleged.

On September 1, 1999, the agency issued a final decision finding no

discrimination. On appeal, complainant restates arguments previously

made at the hearing. Complainant also contends that the AJ erred when

she failed to introduce the arbitrator's award reinstating complainant

back into the position, and granted her back pay. She argued that the

AJ erred when she determined complainant violated her work restrictions.

She argues the agency otherwise failed to comply with policies related

to limited duty.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an

Administrative Judge 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 that discriminatory intent

did not exist 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

recommended decision summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. Importantly, we note that

complainant failed to present any evidence whatsoever that the agency's

actions were in retaliation for complainant's prior EEO activity or were

motivated by discriminatory animus toward complainant's race or sex.

Although the decision to investigate and terminate complainant may

not have been appropriate in the view of the arbitrator, we note the

arbitrator's opinion is not the critical inquiry before us. Rather, we

are concerned with whether agency officials terminated complainant based

on a discriminatory animus. Nothing proffered by complainant persuades

us that an illegal motive was used in the decision to investigate

and terminate complainant. We discern no basis to disturb the AJ's

recommended decision. Therefore, after a careful review of the record,

including complainant's contentions on appeal, the agency's response,

and arguments and evidence not specifically addressed in this decision,

we affirm the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 7, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant1 On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2Nixie mail clerks handle mail that has been returned due to illegible

addresses. They correct the address, or return the mail to the sender.

3This individual had purportedly requested leave to move his mobile home.

When his request was denied, he called in sick. The postal service

surveilled the individual, but he was never caught on video.