01A02359
07-05-2002
Barbara McIntosh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara McIntosh v. United States Postal Service
01A02359
07-05-02
.
Barbara McIntosh,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02359
Agency No. 4-H-3300-072-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint 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. The appeal is accepted pursuant to
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 Letter Carrier at the agency's Flagler Station facility in Miami,
Florida. Complainant sought EEO counseling on November 6, 1998 and
subsequently filed a formal complaint on March 11, 1999, alleging that
she was discriminated against on the bases of race (African-American),
sex (female) and national origin (American) when, on October 16, 1998,
she was told to stay home until the availability of work matching her
medical restrictions could be determined.<1> Complainant asserted that
she was treated differently than other non-Black employees who have been
provided work within their limitations.<2> Complainant's supervisor
(S-1), attested that complainant suffered from a non-occupational
disability that did not allow complainant to perform the duties of
her position. S-1 further attested that complainant was observed to
determine if she could be productive in the facility or if her medical
condition would improve between August and October 1998, but that her
condition remained the same.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its FAD,
the agency concluded that complainant failed to establish a prima
facie case of discrimination on any of the bases alleged because she
failed to show that any other employee, outside of her protected group,
with limitations as restrictive as hers was provided work. The agency
further concluded that assuming, arguendo, that complainant established
a prima facie case of discrimination, it articulated a legitimate,
nondiscriminatory reason for its action which complainant failed to show
was pretextual. On appeal, complainant again contends that there are
many carriers working at the facility with medical restrictions yet were
not denied work as she was. The agency requests that we affirm its FAD.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Department of Health and Human Serv., EEOC Request No. 05900467 (June
8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of race, sex, and national origin
discrimination. Therefore, the agency must articulate a legitimate,
nondiscriminatory reason for its action. Here, in response to
complainant's allegations, the agency found that complainant suffered
from a non-occupational disability that did not allow complainant
to perform the duties of her position and that her condition did not
improve in a manner than allowed her to be productive in the office.
While complainant identified two Caucasian comparators (C-1 and C-2)
who were allowed to work with medical restrictions, the record showed
that both individuals had restrictions which were less severe than
complainant's restrictions. The record shows that C-1 was on light
duty but was able to perform most of his duties and had since returned
to full duty. In C-2's case, her restrictions allowed her to walk,
stand, sit, and climb for longer periods than complainant. Therefore,
we find that complainant failed to sustain her burden to show that the
agency's articulated reason for not providing her with work was a pretext
for discrimination because of her race, sex, or national origin.
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 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
____07-05-02______________
Date
1Due to her medical restrictions, complainant had partial restrictions
on lifting weights up to 35 pounds, and full restrictions on weights over
that amount. In addition, complainant had full restrictions on driving,
climbing, kneeling, pushing, pulling, and climbing. Complainant was
also limited to walking, standing and sitting to a period not exceeding
three hours.
2We note that complainant did not raise a claim that the agency failed
to accommodate her disability in either the underlying complaint or the
instant appeal.