01981329
06-26-2001
Betty L. Cooprider, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Betty L. Cooprider v. United States Postal Service
01981329
06-26-01
.
Betty L. Cooprider,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01981329
Agency No. 4-H-320-1220-96
DECISION
Betty Cooprider (complainant) filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final agency decision
(FAD) dated November 3, 1997, concerning her complaint alleging that she
was discriminated against on the bases of her sex (female) and age (48)
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. (1994 & Supp. IV 1999), and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. (1994 & Supp. IV 1999). The appeal was postmarked
December 1, 1997. Accordingly, the appeal is accepted pursuant to 29
C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented on appeal is whether complainant was discriminated
against when she was denied a limited duty assignment at the agency's
Homossa Springs, Florida facility.
BACKGROUND
The record reveals that during the relevant time, complainant was
a Rural Carrier at the Homossa Springs, Florida facility, but was
on an extended limited duty assignment to the agency's Floral City,
Florida facility while she recovered from a back injury. Complainant
had work-related back injuries in 1991 and 1992. On both occasions
complainant was given limited duty assignments at her regular duty station
at the Homossa Springs facility. In March 1996, complainant submitted
medical documentation indicating that she had re-injured her back and was
restricted to a limited duty assignment.<1> While her claim was pending
with the Department of Labor's Office of Workers' Compensation (OWCP),
complainant was placed in a limited duty assignment on April 30, 1996.
Complainant alleges that the Postmaster at Homossa Springs (P-1) refused
to let her work at Homossa Springs and instead sent her to the Floral
City Post Office. Complainant further alleged that during this same
time, a male Part Time Flex Clerk (PTF-1) suffered an off work injury
on April 22, 1996, but was offered a light duty assignment at Homossa
Springs until he recovered from his injury in early July 1996.
At some point prior to complainant's most recent injury, three other
Rural Carriers were on limited duty at the same time. P-1 indicated
that it has been his policy on extended limited duty cases to loan
out employees to other offices in need of additional help. Moreover,
he indicated that he had a full complement of workers, and also had a
full-time rehab employee. As a result, P-1 began loaning out limited
duty carriers to other post offices. Two carriers were loaned out,
carrier one (C-1) to the Floral City Post Office and the other (C-2) to
the Dunnellon Post Office. The third carrier (C-3) remained at Homossa
Springs and was eventually offered a permanent limited duty position in
October 1995. Complainant contends that she was unaware of P-1's policy
as she had previously worked at Homossa Springs while on limited duty,
and that some of C-3's duties were performed by a Rural Route Carrier
from the Dunnellon Post Office, and that these duties were similar to
those she performed in Floral City.
P-1 indicated that he contacted complainant on July 18, 1996 at the
Floral City facility to inform her that her OWCP claim had been denied.
He further indicated that since complainant's claim had been disallowed
and she still had medical restrictions, her claim was then considered a
light-duty off-the-job injury. Complainant alleged that during this same
conversation, P-1 threatened her, but did not indicate the nature of the
threats, nor did she indicate that any of the threats were carried out
against her. P-1 then stated that the Rural Letter Carriers National
Agreement did not provide for light duty assignments for the Rural
Carrier Craft<2> and that he did not have any light duty assignment for
complainant in the Clerk Craft due to her extensive restrictions and her
lack of skills in the craft. Complainant was on leave without pay from
July 18 to July 22, 1996, when she again submitted documentation for
a back injury. At that time a decision was made to place complainant
in a limited duty status and she was again sent to work at the Floral
City Post Office.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on August 8, 1996.
On October 23, 1996, the agency dismissed complainant's allegation
that P-1 threatened her, and indicated that the threat was a proposed
action that was not valid unless effectuated.<3> 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. By letter dated July 16,
1997, complainant requested that the agency issue a final decision.
The agency issued its FAD on November 3, 1997.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex discrimination in that she did not identify
any similarly situated employees of another sex who were treated more
favorably that she. Further the agency found that while complainant
named PTF-1 as a comparison, he did not need an extended period of
time on limited duty as she did; therefore, he was not considered to
be similarly situated. The agency argued that even if complainant
had been able to establish a prima facie case of sex discrimination,
the records and testimony reflected that complainant and three other
females had been given limited-duty work at her regular duty station
in the past. Further, the agency argued that P-1 indicated that he
had a full complement of workers as well as a full-time rehab employee,
and that his policy on extended limited duty cases was to loan out the
employee to other offices in need of help.
The agency also concluded that complainant failed to establish a prima
facie case of age discrimination in that she was unable to prove by a
preponderance of the evidence that her age was considered, or that it
was a determining factor in management's decision. Moreover, the agency
argued that with the exception of PTF-1, all the other females who had
been given limited duty work within the office were over 40 years of age.
On appeal, complainant contends that P-1 violated Article 2 � 2 and
Article 13 � 2 of the Rural Letter Carrier's National Agreement when he
did not make every effort to employ her at her regular duty station.<4>
Further, complainant contended that one of her allegations, specifically
threats by P-1 over the phone, should not have been dismissed without
an investigation. The agency requests that we affirm its FAD.
FINDINGS AND ANALYSIS
Before addressing the merits of this claim, we note that complainant
argued on appeal that the agency improperly dismissed her allegation
relating to threats from P-1. EEOC Regulation 29 C.F.R. � 1614.402(a)
states that appeals described in 29 C.F.R. � 1614.401(a) must be filed
within thirty days of receipt of the dismissal, final action or decision.
A review of the FAD partially dismissing complainant's allegations reveals
that the agency properly advised complainant that she had thirty (30)
calendar days after receipt of its final decision to file her appeal
with the Commission. The record indicates that complainant received the
FAD on October 28, 1996. Therefore, in order to be considered timely,
complainant had to file her appeal no later than November 27, 1996,
pursuant to 29 C.F.R. � 1614.402(a) and 604(d). Complainant did not file
her appeal until she received the FAD on her accepted claims in November
1997. Complainant provided no justification for an extension of the
applicable time limit for filing her appeal. Accordingly, complainant's
November 1997 appeal on this allegation is hereby dismissed as untimely.
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). See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
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.<5>
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 established 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 age and sex discrimination.
Therefore, the burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Here, in response to
complainant's claims of discrimination, the agency presented evidence
that P-1 indicated that he had a full complement of workers as well as
a full-time rehab employee, and further indicated that it was his policy
on extended limited duty cases to loan out the employee to other offices
in need of help. Further, the record shows that PTF-1 was not similarly
situated because he was a clerk and outside the Rural Carrier Craft.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the complainant to demonstrate that the
agency's articulated reason was pretext for discrimination. Complainant
did not refute P-1's argument that he had a full complement of workers.
Instead, complainant contends that she was unaware of P-1's policy as she
had previously worked at Homossa Springs when she was on limited duty.
Complainant further contends that the language of Article 13 � 1 requires
that the employer �make every effort� to place the injured employee in a
position at their regular duty station. However, the record indicates
that the actual language of the section states that the agency will
�make an effort to assist� employees who through occupational injury
or illness are unable to perform their regularly assigned duties.
This effort consists of �possible assignments to limited duty work if
such work is available.� We find that complainant has not shown that
the agency was required to place her in a position at her regular duty
station nor that other employees (on loan or regularly stationed) at
Homossa Springs had to be displaced to accommodate her limited duty needs.
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.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
____06-26-01__________________________
Date
1Complainant's doctor indicated that complainant was suffering from
a chronic lumbar myofascial injury superimposed upon arthritic and
degenerative disc changes in the back warranting a permanent impairment
rating of 5% and permanent restrictions.
2 Article 13 of the Agreement states �in the rural carrier craft, at
any local installation, regular rural routes shall not be considered
for any light duty assignments.�
3Complainant was given the right to appeal the partial dismissal of
this claim, but chose not to do so until she filed her appeal to the
FAD issued in November 1997.
4Article 2 � 1 refers to the agreement between the union and the agency
that there shall be no discrimination on any protected basis. Article 13
� 1 indicates that the agency will make an effort to assist employees
who through occupational injury or illness are unable to perform their
regularly assigned duties. This effort consists of possible assignments
to limited duty work if such work is available.
5 We find that the agency erred to the extent that it found that
complainant had not established a prima facie case of age or sex
discrimination because she was unable to demonstrate that she was treated
less favorably than any similarly situated employee. We note that to
establish a prima facie case, complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. Furnco, 438 U.S. at 576. It is not
necessary for the complainant to rely strictly on comparative evidence in
order to establish an inference of discriminatory motivation necessary to
support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).