Betty A. Thompson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 31, 2000
01971189 (E.E.O.C. Aug. 31, 2000)

01971189

08-31-2000

Betty A. Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Betty A. Thompson v. United States Postal Service

01971189

August 31, 2000

Betty A. Thompson, )

Complainant, )

) Appeal No. 01971189

v. ) Agency Nos. 4-I-640-1005-94, 1011-94,

) 1034-94, 1035-94

William J. Henderson, ) Hearing Nos. 280-95-4274X, 4275X,

Postmaster General, ) 4276X, 4277X

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the

agency concerning her allegation that the agency violated Title VII of

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

and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et

seq.<1> The appeal is accepted by the Commission in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUES PRESENTED

The issues presented herein are whether the complainant has established

that the agency discriminated against her based on physical disability

(plantar fasciitis) and reprisal (prior EEO activity) when: (1) she

was converted to full-time status; (2) it rescinded the posting for

a Clerk-Stenographer position; (3) she was chastised for going into

overtime status by 13 units; and (4) she was denied a transfer to the

Independence, Missouri, Post Office.

BACKGROUND

The complainant, an employee at the Liberty, Missouri, Post Office,

filed four formal complaints in late 1993 and early 1994 in which she

raised what have been identified as Issues 1 through 4. Following

investigations of these complaints, an administrative hearing was held

before an administrative judge (AJ) on all four complaints in June 1996.

In a recommended decision (RD) dated August 19, 1996, the AJ initially

found that the complainant is a �qualified individual with a disability.�

The AJ proceeded to find discrimination with regard to Issue 2 and no

discrimination with regard to Issues 1, 3, and 4. The agency thereafter

issued a final decision (FAD) in which it rejected the former finding

and accepted the latter findings. It is from this decision that the

complainant now appeals.

Issues 1 and 4

The record reveals that, prior to August 1993, the complainant was

working in the limited duty position of Part-Time Flexible Schedule

(PTFS) Distribution Clerk. In July 1993, the complainant was offered

that position on a full-time basis, and following her acceptance she was

converted to full-time status in August 1993. According to the Facility's

postmaster, the conversion was based on an agreement between management

and the union whereby certain PTFS craft employees were converted to

full-time positions.

The complainant's primary objection to the conversion is that, to the

extent the permanent position was a limited duty position, management

placed her in it as a means of preventing her from transferring out of

the facility. This objection is based on a memorandum of understanding

(MOU) stating that management may deny a transfer to an employee who has

a live disciplinary record and/or is on light or limited duty. In this

regard, the record reveals that the action encompassed in Issue 4, i.e.,

the denial of the complainant's request for a transfer to the agency's

Independence, Missouri facility, was premised in part on the provisions

in the MOU.

In examining Issue 1, the AJ initially concluded that the complainant

is a �qualified individual with a disability� based on a finding

by a U.S. District Court judge that, as a result of plantar

fasciitis in her left foot, she is unable to perform the functions

of the Window/Distribution Clerk position she held prior to going on

limited duty. The AJ also found, however, that the complainant had not

established that her conversion to full-time status constituted either

disability discrimination or retaliation.

Regarding Issue 4, the AJ found that the MOU, to the extent it permitted

management to deny transfers to employees on light and limited duty,

violated 29 C.F.R. � 1614.203(d)(1) by tending to screen out qualified

individuals with disabilities. The AJ found further, however, that the

denial was also premised on the fact that the complainant had a live

disciplinary record. For that reason, the AJ concluded that the denial

of the transfer request was not discriminatory.

Issue 2

This issue involves the complainant's non-selection for a

Clerk-Stenographer position in the agency's Kansas City, Kansas facility

in July 1993. The record reveals that, in early 1993, a new individual

(the Responsible Official, RO) became the postmaster at that facility.

The RO testified that he needed a secretary, and that, for that reason,

he had asked personnel to advertise a Clerk-Stenographer position. In the

interim, the RO's secretarial duties were performed by two individuals,

including a General Clerk. The RO testified that the General Clerk did

such an effective job that, by the time the Clerk-Stenographer position

was advertised, he had determined that a General Clerk would be able to

fulfill his secretarial needs.<2> For this reason, the advertisement

for the Clerk-Stenographer position was rescinded and a vacancy for a

General Clerk position was posted.

The AJ, based on the evidence of record and the credibility of the

witnesses, concluded that the complainant had shown actions taken by the

agency �from which one could infer, if such actions remain unexplained,

that it is more likely than not, such actions were based on discriminatory

criteria.� In support of this conclusion, the AJ noted that, although

the RO testified that he needed someone to do �straight-out typing [of]

correspondence to customers and employees,� the position description

for General Clerk states that typing is not performed �for substantial

periods of time.� The AJ also noted that the agency had not retained

the documents relating to the recruitment for the Clerk-Stenographer

position. Based on these factors, the AJ concluded, �In light of the

foregoing, I find that the [a]gency failed to articulate a legitimate,

nondiscriminatory reason for its action with sufficient clarity to afford

[the complainant] a full and fair opportunity to establish pretext.�

As support for that conclusion, the AJ cited the holding in Hollis

v. Department of Veterans Affairs, EEOC Appeal No. 01934600 (May 3,

1994).

Issue 3

The final issue raised by the complainant is that, on November 23, 1993,

she was chastised by a supervisor for working 13 units of overtime the

previous day. According to the supervisor, he merely told the complainant

that she needed to be cognizant of her time due to budget constraints

regarding overtime. The AJ found that, because the supervisor's actions

did not constitute a concrete action, the complainant was not aggrieved.

ANALYSIS AND FINDINGS

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 regarding

whether or not discriminatory intent existed is a factual finding. See

Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). The Commission

also notes, however, that an administrative judge's conclusions of law

are entitled to a de novo standard of review. EEOC - Management Directive

(MD) 110, 9-16 (November 9, 1999).

Issues 1 and 4

To establish a prima facie case of disability discrimination under

a disparate treatment theory, the complainant must demonstrate:

1) she is an �individual with a disability� as defined in 29

C.F.R. � 1630.2(g);<3> 2) she is a �qualified individual with

a disability� as defined in 29 C.F.R. � 1630.2(m); and (3) she was

subjected to an adverse personnel action under circumstances giving

rise to an inference of disability discrimination. See Prewitt v. United

States Postal Service, 662 F.2d 292 (5th Cir. 1981). An �individual with

a disability� is defined as someone who: (1) has a physical or mental

impairment which substantially limits one or more of such person's major

life activities; (2) has a record of such an impairment; or (3) is

regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3).

�Major life activities� include functions such as caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. 29 C.F.R. � 1630.2(i). The Commission has also

recognized lifting as a major life activity. See Saul v. U.S. Postal

Service, EEOC Request No. 05950006 (May 2, 1996).

The AJ found that the complainant is a �qualified individual with a

disability� based on a finding by a U.S. District Court judge that,

as a result of the plantar fasciitis in her left foot, she is unable

to perform the functions of the Window/Distribution Clerk position she

originally held. The Commission notes, however, that the complainant's

inability to perform in one particular position does not, by itself,

mean that she has a disability. Instead, the appropriate question

is whether her impairment substantially limits a major life activity.

The medical evidence of record reveals that the complainant is unable to

walk and/or stand for more than three to four hours at a time and that she

cannot lift more than 25 to 30 pounds. Having considered this evidence,

the Commission concludes that, although the complainant's impairment

affects several major life activities, none of these activities were

substantially limited. Therefore, the Commission concludes that the

complainant does not have an actual disability. Furthermore, the evidence

of record does not establish that the complainant was either regarded as

disabled or that she had a record of a disability. For these reasons,

the Commission finds that the complainant has not established that she

is an �individual with a disability,� and, as such, cannot establish a

prima facie case of disability discrimination.

The Commission does find, however, that the complainant is able

to establish a prima facie case of retaliation. Specifically, the

record reveals that, shortly prior to the events encompassed in Issues

1 and 4, the complainant had engaged in EEO activity of which relevant

management officials were aware. See Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545

F.2d 222 (1st Cir. 1976). Because the complainant has established a prima

facie case, the agency now has the burden of articulating a legitimate,

nondiscriminatory reason for the challenged actions. Texas Dep't of

Community Affairs v. Burdine, 450 U.S. at 253 (1981). We find that

the agency has met this burden. Regarding Issue 1, officials testified

that the complainant was converted to a full-time position as a result of

the MOU providing that PTFS craft employees would be placed in full-time

positions. With regard to Issue 4, several reasons were articulated for

denying the complainant's transfer request, the primary one being that

the MOU allowed management to deny the transfer requests of employees who

had either a live disciplinary record or were on light or limited duty.

At this point, the complainant bears the burden of establishing that the

agency's articulated reasons are a mere pretext for discrimination.

The complainant can do this either directly, by showing that a

discriminatory reason more likely motivated the agency, or indirectly,

by showing that the agency's proffered explanation is unworthy of

credence. Id. at 256. The Commission agrees with the AJ and finds

no evidence of pretext regarding Issue 1. In particular, it is not

apparent, as the complainant alleges, that she was converted to full-time

status in order to prevent her from transferring out of the Facility.

Although the AJ, in considering Issue 4, found that the MOU tended to

screen out disabled individuals, the complainant has not established

that she is disabled. For that reason, and because the denial of her

transfer was also based on her live disciplinary record, we find it

unnecessary to address that question at this time.<4> Accordingly,

the Commission finds the complainant has not established discrimination

and/or retaliation with regard to this issue.

Issue 2

In analyzing this issue, the AJ did not explicitly find that the

complainant had established a prima facie case. In considering that

question, the Commission initially finds, for the reasons discussed

previously, that the complainant cannot establish a prima facie case of

disability discrimination. Furthermore, the Commission finds insufficient

evidence to support a prima facie case of retaliation. Specifically,

the RO testified that he did not know the complainant and that he was

unaware of her prior EEO activity. Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. at 324. Because the AJ found

discrimination, however, the Commission will, for purposes of analysis,

assume that the complainant is able to establish a prima facie case

As discussed, the AJ found that the agency was unable to articulate

a legitimate, nondiscrimina-tory reason for the rescission of the

Clerk-Stenographer position. Having carefully reviewed the evidence of

record, the Commission finds that this conclusion constitutes an error

of law. The AJ's finding was premised on the combination of two factors,

namely, her determination that the RO was not credible and the agency's

failure to preserve the records pertaining to the Clerk-Stenographer

position. Although the AJ relied on the holding in Hollis v. Department

of Veterans Affairs, EEOC Appeal No. 01934600 (May 3, 1994), we find that

this case is distinguishable from Hollis. In that case, the complainant

was non-selected for a position by a panel. Not only had the agency

not retained the records pertaining to the selection process, but the

panelists were unable to credibly explain the bases for their ratings.

The combination of these factors led the Commission to conclude that

the agency was unable to articulate a reason why the complainant was

not selected.

In the present case, by contrast, the agency's failure to maintain the

promotion package did not bear on its ability to articulate a legitimate,

nondiscriminatory reason. In so finding, we note that the reason

articulated for the rescission of the Clerk-Stenographer position, i.e.,

that the RO determined the General Clerk working for him would suffice,

was unrelated to the contents of the promotion package. Furthermore,

whether or not the RO is credible pertains to the question of pretext, not

to whether the agency has met its burden of production. In this regard,

the Supreme Court has stated that, to meet its burden at this stage,

the defendant need not establish that it was actually motivated by the

proffered reason(s). Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 254 (1981). Instead, it must simply articulate a reason that is

legally sufficient to justify a judgment for the defendant. Id. at 255.

The Commission finds that, under this standard, the RO's articulated

reason is sufficient to satisfy the agency's burden of production.

The AJ, having determined that the agency did not meet its burden

of production, did not address whether the complainant was able to

demonstrate pretext. The Commission notes, however, that her credibility

finding regarding the RO is relevant to that question and must be

addressed. In considering that finding, the Commission concludes that

it is not supported by substantial evidence. As discussed, the finding

was based on the AJ's determination that the RO could not reconcile his

belief that a General Clerk could perform �straight-out typing� with the

PD's statement that General Clerks do not type for �substantial�periods

of time. The Commission is not persuaded, however, that a discrepancy

exists. First, we note that the RO never testified that the General Clerk

who worked for him typed for �substantial� periods of time. Therefore,

it is not apparent that those individual's duties were inconsistent

with the PD. Second, it is apparent from the RO's testimony that he

was not explicitly aware of what the PD said regarding typing, and

that his conclusion that a General Clerk was sufficient to handle his

typing duties was based on the fact that, between March and July 1993,

one had successfully done so. Finally, to the extent General Clerks do,

in fact, type, there is nothing inherently illogical or suspicious about

the RO's testimony that a General Clerk could handle his typing needs.

The Commission does agree with the AJ that, once the agency was on

notice that the complainant had filed an EEO complaint, it should have

preserved the documentation pertaining to the Clerk-Stenographer position.

However, because a selection for the Clerk-Stenographer position was

never actually made, this documentation has limited probative value.

At most, an inference could be drawn that the complainant was the best

qualified of the individuals who applied. Even assuming that to be the

case, however, the complainant still needs to demonstrate that management

discriminatorily withdrew the Clerk-Stenographer position in order to

prevent her from being selected. Not only is there insufficient evidence

to support such a conclusion, but the RO offered unrebutted testimony that

he did not know the complainant and was unaware of her prior EEO activity.

Accordingly, the Commission finds that the complainant has not established

discrimination with regard to this issue.

Issue 3

As discussed, the AJ found that this issue did not state an actionable

claim. Even assuming, however, that it does, the Commission finds

that the complainant has not established that the action in question

was discriminatory. Specifically, we find that the official who spoke

to the complainant articulated a legitimate, nondiscriminatory reason

for the talk, i.e., that the complainant had improperly worked 13 units

of overtime. The Commission finds the complainant has not adduced

sufficient evidence to demonstrate that this reason is pretextual.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is the

decision of the Commission to AFFIRM the FAD and find the complainant has

not established that the agency discriminated against her as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

_08-31-00_____ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

01 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.

02 The record reveals that, although both General Clerks and

Clerk-Stenographers perform secretarial duties, General Clerks also

perform other duties more directly related to the processing of mail.

03 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

04 Nevertheless, to the extent many light and limited duty employees

are working in that capacity as a result of disabilities, the Commission

is troubled by a policy that serves to disadvantage such employees.