0120143192
02-06-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120143192
Agency No. 4E-500-0004-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 20, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Cedar Rapids, Iowa, Post Office.
On January 6, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of disability (back) when:
1. on October 1, 2011, she was moved from the Outgoing schedule to the Automation schedule without her knowledge;
2. on October 12, 2011, she was forced to sign a new job offer containing more jobs that were outside her restrictions;
3. since October 21, 2011 and continuing, she has been denied work within her restrictions; and
4. since October 2011, she has been denied overtime opportunities.
After the investigation of the instant formal complaint, 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 (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant requested a hearing. By an Order entitled "Dismissal of Hearing Request," the AJ cancelled the hearing request. The AJ found that Complainant failed to respond to the AJ's July 2, 2014 Order to Show Cause. The AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. 1614.110(b) on August 20, 2014.
In its decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of disability.1 The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of disability discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The instant appeal followed. Complainant, on appeal, argued that the AJ erred canceling her hearing request because she "has NOT failed to prosecute this matter [emphasis in its original]." For instance, Complainant stated from January 25, 2013 to July 2, 2013, there was confusion concerning telephone conferences with the AJ and the Agency attorney.
ANALYSIS AND FINDINGS
As a threshold matter, we note that Complainant, on appeal, challenges the AJ's dismissal of her hearing request. EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. � 1614.109; EEO MD-110, at 9-10. Further, an AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999).
We have reviewed the documentary evidence in the record and find that the AJ acted within his discretion to dismiss Complainant's hearing request when she failed to comply with his orders. Both parties were notified that failure to follow orders of the AJ or comply with the Commission regulations may result in sanctions, pursuant to 29 C.F.R. � 1614.109(f)(3). The AJ found, and we agree, that Complainant did not follow the orders of the AJ. Complainant was given the opportunity to show good cause why sanctions should not be issued against her. However, Complainant failed to demonstrate good cause why sanctions should not be imposed upon her for failure to cooperate in the processing of her complaint. Accordingly, the AJ properly dismissed Complainant's hearing request. See 29 C.F.R. � 1614.109(f)(3). We now turn to the merits of this case.
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, 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. The
Manager, Distribution Operations (Manager) stated that in regard to claim 1, Complainant was moved from the Outgoing schedule to the Automation schedule because the new Local Memorandum of Understanding (LMOU) with the union stated that if an employee would not working a bid position, which Complainant was not, he or she was to be put back on the schedule of the employee's bid position. The Manager stated during the relevant period, Complainant's bid position was in Automation but she was working a non-bid position in Outgoing due to her back injury.
Further, the Manager stated that Complainant was not moved without her knowledge, as "all employees that were Union members were given a LMOU booklet or a union paper informing them of the change." The Manager stated that Complainant was the only employee in Tour 3 who was working outside her bid position. The Manager stated that Complainant's disability was not a factor in the management decision to move Complainant from the Outgoing schedule to the Automation schedule.
The Tour 3 Supervisor stated that during the relevant period, he was one of Complainant's immediate supervisors (supervisor). The supervisor stated that Complainant was not moved from Outgoing and her duties were not changed. However, in October 2011, her schedule was changed to match her bid position in Automation, as a requirement of the LMOU. Specifically, the supervisor stated "the change was a contractor issue and it was not without the Complainant's knowledge. She knew when the change was being discussed and that it was according to the contract. The Union and I was involved. Her job duties were not changed. Her name was moved from the OTDL in outgoing to the OTDL in automation."
Further, the supervisor stated "the reason her hours were changed was management decided to allocate more hours of machine operating time to Maintenance during Tour 2, rather than running mail on those machine from 6:00 a.m. to 2:30, which generated the manual mail she was working when she came in. Basically mail volume and the contract determined the change."
Regarding claim 2, the Manager stated that Complainant was not forced to sign a job offer but she did sign accepting the job offer, after being given the choice to accept or decline it. The Manager stated that management determined that all jobs on the PS Form 2499 "Offer of Modified Assignment (Limited Duty)," were within Complainant's restrictions. Furthermore, the Manager stated that on October 28, 2011, Complainant was given a new job offer "based on her updated doctor's restrictions submitted to OWCP [Office of Workers Compensation] on 8/2/11, which she accepted. She had a choice to accept or decline."
The supervisor stated that Complainant "was never forced to sign a job offer. On several occasions when she was presented with the 2499, I would sit down with her and go over each job duty. If she told me she could not do the job and if we both agreed it took her outside of work within her restrictions, I took the duties off. There were times I would not take the duties off, as they were within her restrictions as written by the doctor; they were not jobs she wanted to perform. For example, she did not want to do the Expeditors' job or Express Clerk's job." Moreover, the supervisor stated that Complainant had the option of having union representative whenever a PS Form 2499 was discussed with her, and representation would be provided.
Regarding claim 3, the Manager stated Complainant was assigned to Outgoing performing work that was within her restrictions. The Manager stated at that time he administered modified job offers by typing them up and "I sat with the Union and came up with what duties we felt [Complainant] could perform."
The supervisor stated "I have not denied work to the Complainant work within her restrictions. She normally worked eight hours per day. I cannot think of an incident she was sent home or told not to report to work due to her restrictions."
Regarding claim 4, the Manager stated that during the relevant period, Complainant was put on the Automation schedule "but, if overtime was in Outgoing and employees were on the Outgoing OTDL [Overtime Desired List], they were given the opportunity first; if another person was needed in Outgoing, then [Complainant] was selected. She was on Automation OTDL and Outgoing OTDL. She was on the Outgoing OTDL up until October 2011. I was not directly involved with assigning who would work overtime; I would call overtime and the supervisor would make the selection."
The supervisor stated that when Complainant was moved from the Outgoing OTDC to the Automation OTDL, her overtime was decreased, but the overtime decrease was not attributable to a denial of overtime opportunities. For instance, the supervisor stated that Complainant "needed to be on the Overtime Desired List within her bid position. Maybe she was getting about 0-8 hours of overtime a week prior to the change. After the change, she was getting about 2-4 hours per week. She refused overtime after the change. There were several occasions that Tour 1 wanted to keep her for overtime; she was asked if she could stay and case mail; but she refused." Moreover, the supervisor stated that Complainant was informed that her change from the Outgoing to Automation OTDLs would affect her overtime.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the Agency's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation. 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
February 6, 2015
__________________
Date
1 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120143192
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120143192
7
0120143192