01982163
12-20-2000
Deanna R. Soutter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Deanna R. Soutter v. United States Postal Service (Southeast Area)
01982163
December 20, 2000
.
Deanna R. Soutter,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01982163
Agency No. 4H-335-1163-95
Hearing No. 150-96-8139X
DECISION
Complainant timely initiated an appeal from the agency's final
agency decision (FAD), concerning her equal employment opportunity
(EEO) complaint of unlawful 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.<2> Complainant alleges she
was discriminated against based on disability (restless leg syndrome)
and retaliation (prior EEO activity), when on May 5, 1995, she was denied
the opportunity to rescind her resignation submitted on May 4, 1995.
The record reveals that complainant was employed, as a window clerk,
at the agency's Sun City Center Post Office facility, in Sun City, FL.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal EEO complaint with the agency
on June 19, 1995. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing before
an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued
a decision finding no discrimination. The FAD adopted the AJ's decision.
BACKGROUND
On May 4, 1995, the agency conducted an investigative interview,
concerning four days of unscheduled sick leave the complainant had taken
between April 17, 1995, and April 20, 1995. Complainant had failed to
provide satisfactory medical documentation for the absences. Present at
the investigative interview were complainant, her union representative,
her supervisor, who conducted the interview, and the Postmaster,
who was present for only a portion of the interview. Complainant's
supervisor asked complainant to provide medical documentation regarding
sick leave taken. The postmaster stated that sick leave absences for
more than three days require medical documentation. Complainant's union
representative confirmed that complainant was required to comply because
she had not provided any medical documentation to cover the period
of absence. Complainant became upset and indicated that if management
did not believe she had a medical problem, she would have to resign.
Thereafter on May 4, while the union representative was in the
Postmaster's office, the complainant walked in and requested a PS
Form 2574 entitled �Resignation from Postal Service�(resignation form).
The Postmaster gave complainant the resignation form. Later, complainant
turned in the resignation form, with her resignation to be effective
that same day. The Postmaster accepted the resignation. Nevertheless,
after she had gone home, in a letter dated May 4, 1995, the complainant
stated that at the time she tendered her resignation she was under stress
and therefore requested to withdraw her resignation.
The Postmaster indicated that he received complainant's letter on May 8,
1995, and that the letter was postmarked May 5, 1997. By letter, dated
May 8, 1995, the Postmaster denied complainant's request to withdraw
her resignation citing section 365.211 of the Agency's Employee &
Labor Relations Manual (the ELRM). In relevant part, the ELRM provides
that �resignations must be accepted and are binding once submitted�
but that �employees may be permitted to withdraw their resignation
. . . provided the request to withdraw is made before the effective
date of the resignation.� Recommended Decision at 7, citing Report of
Investigation, Exhibit 6.
The Postmaster was aware that complainant claimed to have restless leg
syndrome. It also appears that the Postmaster was aware that complainant
had inquired about a disability retirement, but that he was informed by
complainant that she was not eligible for disability retirement because
her doctors could not provide the type of medical information required.
The Postmaster further indicated that he did not consider complainant
to be a person with a disability.
The record discloses that complainant had the syndrome at least
since April 12, 1995, and perhaps all her life. It appears that, once
manifested, the syndrome is life long. The effects of the syndrome range
from negligible to completely debilitating. Complainant testified that
but for the medication she was taking, when she lied down to sleep, the
syndrome caused her to feel the sensation of worms crawling up her legs.
The only relief was walking, and she allegedly had walked for the last
ten years. Consequently, she indicated she had not slept well at night.
Finally, complainant testified that in 1983 or 1984 she filed an EEO
complaint (alleging sex discrimination in violation of Title VII) against
the Postmaster. Complainant also testified that in 1991 or 1992 she
began to represent an individual in an EEO complaint, and at the time
of the hearing, testified on the person's behalf.<3> The Postmaster
acknowledged he was aware that the complainant assisted the person in
1991, but that complainant's involvement had no effect on his decision
not to allow complainant to rescind her resignation.
The administrative judge (AJ) concluded that complainant failed to
establish a prima facie case of disability discrimination on the ground
that complainant had failed to establish that she was a qualified person
with a disability under the Rehabilitation Act. The AJ found that
complainant failed to establish a prima facie case of retaliation on
the ground that there was no nexus shown between complainant's protected
activity and the adverse action.
The agency's December 30, 1997 FAD, adopted the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when he ruled that
complainant was not a person with a disability under the Rehabilitation
Act, finding that complainant was not substantially limited in the major
life activity of sleeping. Complainant argues that the AJ erred in
finding that there was no nexus between the prior protected activity and
the adverse action, arguing that this was the first opportunity for the
Postmaster to take an adverse action against complainant. Complainant
also points out that the AJ ignored the evidence presented at hearing
that there was a similarly-situated employee who had not engaged in
protected EEO activity who was permitted to rescind her resignation.
FINDINGS AND ANALYSIS
For the following reasons, the Commission affirms the agency's FAD dated
December 30, 1997.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Disability Discrimination
To establish a prima facie case of disability discrimination under a
disparate treatment theory, the complainant must demonstrate: (1) she is
an �individual with a disability� as defined in 29 C.F.R. � 1630.2(g);
(2) she is a �qualified individual with a disability� as defined
in 29 C.F.R. � 1630.2(m); and (3) she was subjected to an adverse
personnel action under circumstances giving rise to an inference of
disability discrimination. See Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981). An �individual with a disability� is
defined as someone who: (1) has a physical or mental impairment which
substantially limits one or more of such person's major life activities;
(2) has a record of such an impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g)(1)-(3). �Major life activities�
include functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). After complainant has established a prima facie
case, the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate
reason(s) proferred by the agency was a pretext for discrimination.
Id. at 256.
Although the initial inquiry of discrimination usually focuses on whether
the complainant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Even assuming,
arguendo, that complainant could prove that she was a qualified
individual with a disability within the meaning of the Rehabilitation
Act and establish a prima facie case, as discussed more fully below,
we find that she, nevertheless, has failed to prove discrimination.
We find that the agency articulated a legitimate, nondiscriminatory
reason for declining complainant's reinstatement, i.e., the ELRM provides
that �resignations must be accepted and are binding once submitted�
but that �employees may be permitted to withdraw their resignation
. . . provided the request to withdraw is made before the effective date
of the resignation.� Specifically, on May 4, 1995, complainant turned
in her resignation form to the Postmaster, with her resignation to be
effective that same day. Accordingly, under the ELRM, complainant could
not withdraw her resignation on May 8, 1995, when the Postmaster first
became aware of her desire to withdraw her resignation.<4> Since she
could not withdraw her resignation since it had already gone into effect,
she could not be reinstated (as distinguished from being re-hired),
as she alleges she should be allowed to do.
It is thus the complainant's burden to establish by the preponderance
of the evidence (more likely than not), that the agency's articulated
nondiscriminatory explanation for its action was a pretext for
discrimination. In the Commission's view, complainant has failed to
meet her burden to show that the agency's articulated nondiscriminatory
explanation was pretext. This is specifically discussed, infra, with
regard to complainant's arguments that the agency would not reinstate
her in reprisal against her for engaging in protected activity.
As discussed, infra, we find complainant's argument that the Postmaster
had discriminatory animus against her to be without merit. We also
find, infra, complainant's argument that there was an allegedly
similarly-situated comparator, who was reinstated by the agency, to be
without merit.
Reprisal Discrimination
With regard to reprisal discrimination, the Commission has stated that:
The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has been
found to constitute opposition . . . . Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide �exceptionally broad protection to those who
oppose such practices'. . . ." Whipple v. Department of Veterans Affairs,
EEOC Request No. 05910784 (February 21, 1992) (citations omitted).
The Commission has also set forth the criteria for reprisal cases,
as follows:
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) she engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) she was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link . . . The causal connection may be shown by evidence that
the adverse action followed the protected activity within such a period
of time and in such a manner that a reprisal motive is inferred.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted). "Generally, the Commission has held that
nexus may be established if events occurred within one year of each
other." Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996).
With respect to complainant's allegation of reprisal, the AJ found that
complainant engaged in prior protected activity, that the Postmaster was
aware of the activity, that complainant was subjected to an adverse action
when she was not allowed to rescind her resignation, but that there was
no nexus between the adverse action and complainant's prior EEO activity
because the action complained of did not follow in close proximity.
The AJ thus emphasized that the prior EEO activity closest in time to the
employment action complained of was separated by approximately four years.
AJ Decision at 13. He thus concluded that a four-year lapse does not
support an inference of discrimination. Id.
Complainant argues on appeal that the complainant's request to rescind
her resignation was the first opportunity for the Postmaster to take
an adverse action against her to punish her for having engaged in prior
EEO-protected activity. We disagree and conclude that the AJ's decision
is supported by the record and by Commission precedent. See Diep v. United
States Postal Service, EEOC Appeal No. 01944013 (August 21, 1995)(prior
EEO complaint 4 or 5 years ago too remote in time from protected activity
to warrant inference of discrimination)(cited by the AJ) and citing Dawson
v. United States Postal Service, EEOC Appeal No. 01900490 (March 29,
1990); Aquirre v. Chula Vista Sanitary Service and Sani - Tainer, Inc.,
542 F.2d 779, 781 (9th Cir. 1976). We further note that the Sun City
Center Post Office facility is a small office. Tr. 180-81. Presumably the
Postmaster, over such a four-year time period and considering his high
position and the size of the facility, could have engaged in retaliatory
mischief, at an earlier time, if he so desired.
Complainant further argues that in 1993 a postal clerk told her
supervisor she would not be returning to her position and would
resign, that the postal clerk was absent from her position without
approved leave for somewhere between ten days and two weeks, and that
the Postmaster nevertheless agreed to treat the absence as sick leave,
since the postal clerk was emotionally distraught during the unauthorized
absence from work. We conclude that complainant's comparator was not
similarly situated to complainant. The record is unclear whether the
postal clerk indicated that she was resigning, since the postal clerk
testified that the time was �foggy� for her. Tr. 30, 32, 38. The record
indicates the supervisor told the postal clerk she would have to submit
a resignation form if she wished to resign. Tr. 38. Significantly,
no formal resignation was tendered by the postal clerk. Tr. 30, 39.
It thus appears the postal clerk enunciated, at most, only an intent
to resign. In addition, after she returned to work, the postal clerk
took sick leave for the time she had been off. Tr. 31, 32-33. Moreover,
the record gives no indication of any effective date for resignation
enunciated by the postal clerk. On the other hand, it is undisputed that
complainant tendered the resignation form with the May 4 effective date.
Additionally, complainant tendered the resignation form, after being
questioned about her undocumented leave, which she had already taken.
Further, it appears that the postal clerk who was involved in the 1993
incident acknowledged she did resign from the agency, when she tendered
a letter of resignation back in 1981, subsequently asked for her job
back about a month later, but was accepted back only as a new hire,
losing all seniority, and also had to serve a new probationary period.
Tr. 34, 37, 40. See also Tr. 179.
In sum, the Commission finds that substantial evidence supports the
AJ's determination. We further note that the AJ found the Postmaster's
testimony to be credible, and that other than the four-year lapse
between the protected activity and the Postmaster's refusal to reinstate
complainant, there was no credible evidence to support a finding that
a causal retaliatory connection existed.
Since complainant has failed to establish a nexus or causal link between
the adverse action and the protected activity, she has failed to establish
a prima facie case of reprisal discrimination.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant. We discern no basis to disturb
the AJ's decision. 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 agency's final agency decision dated December 30, 1997.
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
December 20, 2000
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 It is unclear which statute was involved in the EEO complaint for
which she was the representative.
4 The attempted withdrawal of resignation letter was postmarked May 5,
1997. Even if one were to give credence to the May 5 postmarked date,
the resignation's effective date had already passed.