0120131575
08-06-2013
Carmen N. Keesen, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Carmen N. Keesen,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131575
Agency No. 4J-606-0164-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 11, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Edgebrook Carrier Annex in Lincolnwood, Illinois.
On August 13, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her in reprisal for prior EEO activity when:
on July 17, 2012, her limited duty assignment was changed and she was not permitted street deliveries.1
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On February 11, 2013, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The Agency noted that Complainant was offered an Offer of Modified Assignment (Limited Duty) dated June 6, 2012. In the modified assignment, Complainant's duties were as follows: casing her route for 1 to 2 hours and delivering mail for 1 hour per day. The record reflects that the physical requirements of the modified assignment were standing for 2 hours; walking for 2 hours; simple grasping/fine manipulation for 2 hours; and lifting 10 pounds for 2 hours. Complainant signed the modified assignment under protest.
The Agency noted that in Complainant's PS Form 3972 for the Leave Year 2012, Complainant was on annual leave for 6 days between April 2012 and May 2012; on annual leave for 6 days and workers' compensation (OWCP) for 23 days; and took various partial days of Leave Without Pay/OWCP between May 2012 and July 2012. Complainant also took various partial or full days of LWOP/OWCP between July 2012 and October 2012 except for 6 days of annual leave between September 17, 2012 and September 22, 2012.
Complainant's Form CA-17 Duty Status Report dated May 13, 2012 indicated she had a 10- pound lifting/carrying restriction for 3 hours per day; a 2-hour standing and walking limitation per day; and a 1-hour climbing restriction per day.
The record further reflects that in her Form CA-17 Duty Status Report dated July 25, 2012, Complainant's restrictions were as follows: 3 hours lifting/carrying; 2 hours standing and walking; 1 hour climbing, no kneeling; 2 hours twisting; 4 hours pushing/pulling; 8 hours simply grasping; 8 hours fine manipulation; 2 hours reaching above shoulder; and 4 hours driving a vehicle.
The Agency noted that the Acting/Manager Customer Services (Acting Manager) stated that he was the decision maker that Complainant's limited duty assignment would be changed and that she would not be permitted street deliveries. Specifically, the Acting Manager stated at that time Complainant's assignment "was based on the CA-17 that she presented to management stating that she could stand and walk for two hours."
The Acting Manager stated that during the relevant period, Complainant's street deliveries "were not removed. The CA-17 she provided limited [Complainant] to two hours a day. The CA-17 states that her limit for standing and walking was two hours. Her tou[r] begins at 8 am and ended at 10 am. [Complainant] would not get her route up in time to perform street deliveries." The Acting Manager also stated that Complainant's "poor office performance hindered her from going to the street as she was only working for two hours."
Further, the Acting Manager stated that on June 6, 2012, Complainant was given the new job offer, which she accepted. Specifically, the Acting Manager stated that the subject offer was 1 to 2 hours of cashing and 1 hour of mail deliver "based on mail volume. I believe it was the beginning of September that I spoke with [Injury Compensation Specialist (Specialist)], who stated that he had spoken with [Complainant's] doctor and he did not correctly fill out the CA-17. [Specialist] stated that [Complainant] should be allowed to work up to four hours. She was then given up to four hours of daily work to include casing and mail delivery. She demonstrated that she could not perform this work as she could not complete the assignment on time. On September 28, 2012, she took sick leave and then went out on full day OWCP. She has not worked since then."
The Acting Manager stated that he relied on the Employee Labor Management manual, Handbook EL-814, Postal Employees Guide to Safety, and Complainant's CA-17 forms in his decision that Complainant's limited-duty assignment would be changed, and she would not be permitted street delivers. Moreover, the Acting Manager stated that he did not discriminate against Complainant based on her prior protected activity.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See 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. See 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. See U.S. Postal Service Board 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 Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were pretextual.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
August 6, 2013
__________________
Date
1 The record reflects that following the filing of the instant formal complaint, Complainant requested that the instant complaint be amended to include claims that were like or related to those raised in the instant complaint which the Agency accepted. The amended complaint contained both mixed and non-mixed issues. The Agency divided the amended claims into two complaints: one for the mixed issues under Agency Case No. 4J-606-0163-12, and another one for the non-mixed issues under Agency Case No. 4J-606-0164-12 which is the subject of the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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