0120091685
06-10-2010
Deborah West,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120091685
Hearing No. 410-2008-00301X
Agency No. 1H301000608
DECISION
On March 15, 2009, complainant filed an appeal from the agency's February
13, 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 appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected to
disability discrimination and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Atlanta, Georgia Processing
and Distribution Center. On February 20, 2008, complainant filed an EEO
complaint alleging that she was discriminated against on the basis of
disability (Knee Pain) and in reprisal for prior protected EEO activity
under when:
1. On October 28, 2007, complainant was not provided with a light duty
assignment and was sent home while other employees were allowed to work
in the box section without light duty paperwork; and
2. On November 15, 2007, complainant was not given her timecard and
allowed to clock in until after her light duty approval was signed.
In an investigative affidavit, complainant stated that she was restricted
from standing more than two hours within an eight hour period and bending
at the knees. Complainant stated that the Acting Senior Manager assigned
her to a Delivery Bar Code Sorter, which aggravated her knee problems.
She stated that when he assigned her to the sorter, she objected to the
assignment and told the Acting Senior Manager that she was waiting on
her updated light duty paperwork. Complainant stated that the Acting
Senior Manager stated that complainant had to go home for the day because
he did not have her updated paperwork.
The Acting Senior Manager stated that he sent complainant home because
she did not have any documentation to support her claim that she was
on light duty. He stated that complainant did not return to work until
November 13, 2007. He stated that complainant did not have restrictions
on October 28, 2007, and she had previously been placed in the Box
Section without any restrictions. He further stated that complainant
did not apply for light duty until November 15, 2007.
Regarding claim 2, complainant stated that on November 15, 2007, the
Acting Senior Manager refused to give her a timecard, which delayed
her from clocking into work until 3:50 p.m. Complainant further stated
that the Acting Senior Manager said that her light duty paperwork had
not been approved, and she must leave the building. Complainant stated
that after talking with a union steward and other management officials,
another Manager told her that she should have received approval from the
Light Duty Coordinator before returning to work. Complainant further
stated that a Manager brought her light duty paperwork from the Light
Duty Coordinator and assured her that the Acting Senior Manager would
give her a timecard.
The Acting Senior Manager stated that he did not give complainant a
timecard because she failed to properly submit her light duty paperwork
at least seven days in advance of her return so that management could
have time to make a decision on her light duty request. Nevertheless,
he further stated that another manager approved complainant for light
duty, and complainant clocked in at 3:50 p.m., on November 15, 2007.
The Light Duty Coordinator stated that, in November 2007, complainant
had not submitted a light duty request when her supervisor asked her
if she had submitted a request. She stated that the supervisor sent
complainant to the Light Duty Coordinator's office to obtain the forms
to request light duty, and a Manager approved the request.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew her request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Although the decision dismissed claim 2 on the grounds that it failed to
state a claim, the decision addressed the merits of both complainant's
claims and found that complainant failed to prove that she was subjected
to discrimination as alleged. Complainant did not submit a statement
on appeal, and the agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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").
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 Construction
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. Texas Department
of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we assume arguendo that complainant established
a prima facie case of discrimination and is an individual with a
disability.1 Nevertheless, we find that the agency provided legitimate,
non-discriminatory reasons for its actions, as explained in detail above.
Complainant failed to rebut the agency's specific, detailed explanations
for its actions. In fact, complainant gave very few details about
critical aspects of her claims in her investigative affidavit and
often answered investigative questions with, "I don't know." We find
that complainant failed to prove that the agency's non-discriminatory
explanations are pretext for unlawful discrimination. Thus, we conclude
that the agency properly found no discrimination in this case.
CONCLUSION
After a review of the record in its entirety, 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 (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
_____06/10/10_____________
Date
1 Because we are addressing the merits of complainant's claims, we decline
to review the agency's dismissal of claim 2 on the grounds that it failed
to state a claim.
??
??
??
??
2
0120091685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091685