Deborah West, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionJun 10, 2010
0120091685 (E.E.O.C. Jun. 10, 2010)

0120091685

06-10-2010

Deborah West, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


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.

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0120091685

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120091685