0120093803
06-30-2011
Brenda J. Morley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Brenda J. Morley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120093803
Agency No. 4J-604-0024-09
DECISION
On September 14, 2009, Complainant filed an appeal from the Agency’s
August 19, 2009 final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons the Commission
AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency
discriminated against her on the basis of physical disability (knee,
shoulder and back injuries) when on November 19, 2008, she was reassigned
from a 7:00 a.m. starting time to a 3:00 p.m. starting time.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked on
a bid for limited duty as a Flat Sorting Machine Operator (FSMO) on Tour
2 in the Nixie Section (NXS) at the Agency’s South Suburban Processing
& Distribution Center in Bedford Park, Illinois. Complainant’s
immediate Supervisor (S1) and the Plant Manager (M1) oversaw her Tour.
On October 8, 2008, Complainant received a letter from M1 notifying her
that her bid was reassigned from Tour 2 to Tour 3 as a result of the
Agency’s abolishment of NXS within Tour 2. Due to the reassignment,
Complainant’s start time shifted from 7:00 a.m. to 3:00 p.m.
Complainant alleged that M1 and S1 allowed similarly situated,
non-disabled employees to remain on Tour 2. Specifically, Complainant
named eleven employees that she alleged were allowed to remain on Tour
2 or work the hours of their bids until their bids were abolished.
The Agency maintained that, on or around October 24, 2008, all employees
who were Mail Processing Clerks or Flat Sorting Machine Operators within
NXS were reassigned to Tours 1 or 3 effective November 8, 2008.
M1 and S1 attested that Complainant was working a modified bid that
allowed her to work in NXS and that she was reassigned as a result of
tour compression and the abolishment of the Tour 2 NXS. In addition,
M1 and S1 attested that the tour compression was done to allow for more
efficient productivity in the factory and that Tour 3 was where volume
was being generated and needed to be cleared.
On March 9, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of physical disability
(knee, shoulder and back injuries) when on November 19, 2008, she was
reassigned from a 7:00 a.m. starting time to a 3:00 p.m. starting time.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged.
In its decision, the Agency found that Complainant failed to establish a
prima facie case of discrimination on the basis of disability because she
was not similarly situated to her named comparison employees. However,
assuming, arguendo, that Complainant established a prima facie case, the
Agency found that management articulated a legitimate, nondiscriminatory
reason for its action; namely, it eliminated NXS on Tour 2 to make the
facility more efficient by compressing the processing window from three
tours to two. Finally, the Agency found that Complainant offered no
evidence beyond her own speculation to show that management’s reason
was a pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant asserted that the Agency’s actions were
discriminatory. Complainant contended that the processing of flat mail,
to which her bid was assigned, was not impacted by the tour compression
because there were no bids abolished within the flat section. Complainant
also asserted that all of the non-disabled employees who were affected by
the tour compression were reassigned only after their bids were abolished.
She further alleged that Nixie flats, which were processed within NXS,
were still being generated on Tour 2.
In response, the Agency requested that we affirm its final decision. The
Agency argued that management’s articulated reason for the tour
compression was legitimate. Moreover, the Agency restated that in
an effort to make the facility more efficient, management compressed
the processing window from three tours to two and in that process, NXS
on Tour 2 was eliminated and the employees in the section were either
assigned to Tour 1 or Tour 3. Further, the Agency argued that, despite
her assignment, Complainant worked a modified bid in NXS on Tour 2,
and was therefore reassigned to Tour 3 where the mail volume was greater
and needed to be cleared.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at
Ch. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard
of review “requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment
of the record and its interpretation of the law”).
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination.
Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular
case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then
shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency’s explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At
all times, Complainant retains the burden of persuasion, and it is her
obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. See Hicks, supra.
For purposes of analysis only, we assume, arguendo, without so finding,
that Complainant is an individual with a disability entitled to coverage
under the Rehabilitation Act and that she also established a prima
facie case of discrimination on the basis of disability with respect to
her allegation. We also find that management articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, both M1 and S1
attested that in order to have a more efficient, productive facility,
the processing windows were compressed and NXS on Tour 2 was eliminated.
Because the Agency articulated a legitimate, nondiscriminatory reason
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reason was a pretext
for discrimination.
Upon review of the record, we find that Complainant failed to present
sufficient evidence that, more likely than not, the Agency’s reason
for reassigning her was a pretext for discrimination. Complainant
contended that management reassigned her despite the fact that she was
on a bid to process flat mail, which was a section not impacted by the
tour compression. However, Complainant’s statements from her formal
complaint, affidavit and appellate brief indicate that her job duties
involved working in NXS because she was tasked with sorting Nixie flat
mail. Complainant’s testimony corroborates management’s statements
that she was not working her bid in the flat section, but rather, was
working a modified bid which allowed her to process mail in NXS.
Complainant also asserted that all non-disabled employees who were
affected by the tour compression were reassigned only after their bids
were abolished. However, the record indicates that all employees who were
reassigned, including Complainant, received letters of reassignment in or
around late October 2008. This corroborates management’s explanation
that everyone working on NXS in Tour 2 was reassigned to another NXS
on Tours 1 or 3 and that the Tour 2 section was abolished. Complainant
further alleged that the Nixie flats were still being processed on Tour 2.
However, the record indicates that NXS was removed from Tour 2 because
all employees originally in Tour 2 NXS were reassigned. Apart from her
own testimony, Complainant has not presented any evidence to dispute the
abolishment of the Tour 2 NXS. Beyond her bare assertions, Complainant
has failed to show that the Agency’s reason for reassigning her was,
in whole or in part, motivated by discriminatory animus. Accordingly,
we find that Complainant failed to show that the Agency’s explanation
was a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_6/30/11_________________
Date
2
01-2009-3803
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093803