0120081305
09-17-2009
Constance Y. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Constance Y. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081305
Agency No. 1K-211-0026-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 17, 2007, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.1
Complainant alleged that the agency discriminated against her on the
bases of disability (tendonitis and carpal tunnel syndrome) and age
(58) when, on April 3, 2007, she was informed that she was no longer
a Primary Clerk on Tour 1. Following an investigation, complainant
requested a final agency decision (FAD). The agency issued its FAD,
finding that no discrimination.
Complainant worked as a Mail Processing Clerk at the Baltimore,
Maryland Main Post Office.2 Complainant has medical restrictions
and works a modified position. Her status as an employee was
"unassigned/unencumbered."3 In April 2007, management assigned all
unassigned/unencumbered employees to open, residual positions, i.e.,
positions that have not been filled by bid. Complainant was assigned to
the Brooklyn Station, with a change in hours to start one hour earlier
and different off days to Sunday/Monday. The record shows that other
unassigned/unencumbered clerks on Tour 1 were also assigned to residual
positions at other stations.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
For purposes of further analysis only, we assume, without finding,
that complainant is an individual with a disability and that she
established a prima facie case of discrimination based on disability
and age. The analysis of claims, such as complainant's, claiming
disparate treatment is patterned after the three-step scheme announced in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Once the
complainant has established a prima facie case of discrimination or
assuming that s/he does so, the agency is required to articulate a
legitimate, nondiscriminatory reason for its actions. To prevail, a
complainant must demonstrate, by a preponderance of the evidence, that
the agency's reason(s) for its action was a pretext for discrimination,
i.e., that the agency's reason was not its stated reason and that it
acted on the basis of discriminatory animus. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
In this matter, the agency explained that it acted to fill all existing,
vacant positions. Following its regulations and the Collective Bargaining
Agreement, it assigned all unassigned/unencumbered employees to vacancies,
and complainant was assigned to the Brooklyn Station.4 We find that the
agency thus has met its burden to proffer legitimate, nondiscriminatory
reasons for reassigning complainant.
Following the McDonnell Douglas scheme, because the agency articulated
legitimate, nondiscriminatory reasons for its actions, the ultimate burden
of persuasion returns to the complainant to demonstrate by preponderant
evidence that the reasons given by the agency for its actions are pretext,
that is, a sham or disguise for discrimination. The complainant must
show that the reason offered by the agency for its actions were not its
true reason and that the agency was influenced by legally impermissible
criteria, i.e., complainant's age and claimed disability. Complainant
has not made such a showing or otherwise offered probative evidence to
support her claims.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, 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 as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 17, 2009
Date
1 Complainant did not provide a statement in support of her appeal.
2 The record also refers to complainant as having been assigned to the
Processing and Distribution Center.
3 As best may be discerned from the record, this status indicates that
an employee is not occupying a bid position.
4 In its comments on appeal, the agency questioned whether complainant
suffered an adverse action by her reassignment; however, the agency
accepted the complaint as stated herein.
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0120081305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081305