Denise Jones, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 9, 2009
0120064223 (E.E.O.C. Jan. 9, 2009)

0120064223

01-09-2009

Denise Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Denise Jones,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120064223

Agency Nos. 1H-328-0011-05 & 1H-328-0018-05

DECISION

INTRODUCTION

On June 19, 2006, complainant filed an appeal from a May 16, 2006

final agency decision concerning her equal employment opportunity (EEO)

complaint alleging 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. 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 final agency decision.

BACKGROUND

During the relevant period, complainant was employed as a distribution

clerk at a Florida facility of the agency. On May 7, 2005, complainant

filed a formal EEO complaint alleging that the agency discriminated

against her based on race (African-American), sex (female), and disability

(severe osteoarthritis with ligament damage to left leg) when (1) in a

letter dated December 1, 2004, a Supervisor of Distribution Operations

(S1) instructed complainant not to send medical documentation to the

agency medical unit directly, (2) from December 3, 2004 to January 11,

2005, management denied her overtime, charged her with absence without

leave, and did not allow her to return to work, (3) on February 2,

2005, S1 conducted an investigative interview on complainant alleging

irregular attendance between December 3 and January 11, (4) on March 14,

2005, management failed to reimburse her for 240 hours of various leave

and pay for December 3, 2004 to January 11, 2005, and (5) on March 15

and 16, 2005, S1 charged complainant with unscheduled leave without pay

rather than sick leave.

In a decision dated May 16, 2005, the agency dismissed the entire

complaint for untimely filing of the formal complaint, claims (1) through

(3) for untimely EEO contact, and (3) for failure to state a claim also.

Complainant filed an appeal with this Commission, which was docketed and

then issued as Jones v. U.S. Postal Service, EEOC Appeal No. 01A54572

(August 9, 2005). In Appeal No. 01A54572, the Commission affirmed the

agency's dismissal of claims (1) through (3) for untimely EEO contact,

and reversed its dismissal of (4) and (5) and remanded (4) and (5) to

the agency for further administrative processing. The agency conducted

an investigation for (4) and (5).

During the agency investigation, complainant stated that she was on an

approved medical leave of absence for a year and, during said period; she

was in a car accident. She stated that, on November 18, 2004, she sent S1

correspondence with medical documentation indicating that her physician

released her to return to work on December 3, 2004. Complainant stated

that, in a December 1 letter, S1 denied her return to work and informed

her that she had to submit medical documentation in narrative form for

the length of her absence and on her physician's letterhead beforehand.

Complainant expressed concern regarding S1's instructions stating that

she provided medical documentation throughout her absence and that S1

delayed informing her of the requirement and thereby prevented her from

returning to work on December 3. Complainant stated that, on December

10, she mailed the required medical documentation to S1, but S1 denied

her return consistently and did not allow her to return to work until

January 12, 2005. Further, complainant stated that her absence on March

15 and 16 should have been considered "scheduled" because she provided

S1 medical documentation on March 14.

Also during the agency investigation, regarding (4), S1 stated that he

completed a pay adjustment, had complainant sign it, and then submitted

the adjustment for processing to the agency's payroll department in

Sioux Falls, SD. S1 stated that his adjustment was based on a March

2005 grievance resolution1 and that he did not control processing once

submitted to payroll. Regarding (5), S1 stated that complainant's leave

was approved following her return and charged as unscheduled personal

leave in lieu of sick leave. He explained that "scheduled" sick leave

requires proper documentation prior to the absence.

Following the agency investigation, the agency informed complainant

of her right to request a hearing before an EEOC Administrative Judge

or an immediate final agency decision. Complainant elected the former.

At the hearing stage, a complaint that complainant filed on July 11, 2005

(agency number 1H-328-0018-05), was consolidated with 1H-328-0011-05.

In the July complaint (1H-328-0018-05), complainant alleged that the

agency discriminated against her based on race, disability and reprisal

for prior EEO activity when (6) on May 4, 2005, an agency supervisor (S2)

required her to show her a disabled parking placard and move her car from

a reserved parking space for the disabled, and then charged her .22 units

of leave without pay to do so and (7) on May 17, 2005, S2 used the last

four digits of complainant's social security number on an investigative

interview form. Complainant subsequently withdrew her hearing request.

In a partial acceptance/dismissal letter dated July 21, 2005, the

agency accepted (6) for investigation and dismissed (7) pursuant to 29

C.F.R. � 1614.107(a)(1) for failure to state a claim. During the agency

investigation for (6), S2 stated that she instructed complainant to

move her vehicle because she parked in the spot reserved for an agency

employee who has one leg and is bound to a wheelchair. S2 stated that

she does not have any detailed medical information beyond that on the

other employee or complainant. Further, S2 stated that employees are

placed "off the clock" if they are asked to move their vehicles.

On May 16, 2006, the agency issued a final decision reiterating its

dismissal of (7) and finding no discrimination as to (4), (5) and (6).

Specifically, the agency stated that complainant failed to show that

she is substantially limited in a major life activity as her physician

released her to full duty with no restrictions or notation of limitations,

and that complainant failed to show a nexus between her protected bases

and the adverse actions alleged in (4) through (6). The instant appeal

from complainant followed.

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 the 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). She must

generally establish a prima facie case by demonstrating that 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). The prima facie inquiry

may be dispensed with in this case, however, since the agency has

articulated legitimate and nondiscriminatory reasons for its conduct.

See U. S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. 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); Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans

Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

In the instant matter, we find that complainant failed to present evidence

that the agency's actions were motivated by discriminatory animus toward

her protected classes.2 We find that complainant failed to show pretext.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

procedural dismissal of (7) and its finding of no discrimination for (4),

(5) and (6).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 (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

January 9, 2009

__________________

Date

1 We note that the record contains a grievance settlement dated March 14,

2005, indicating that the agency would pay complainant for administrative

leave (in lieu of charging leave without pay) between December 10, 2004

and January 11, 2005; except December 22, unless complainant provided

appropriate proof of jury duty service. In addition, the agreement

stated that the agency would reimburse complainant appropriate annual and

sick leave. The record also contains a Pay, Leave or Other Adjustment

Request signed by complainant and S1, dated April 19, 2005. The record

shows there was further correspondence internally and with complainant,

and the agency paid complainant on September 8, 2005.

2 For the purpose of this decision, we assume without finding that

complainant is an individual with a disability. See 29 C.F.R. �

1630.2(g)(1).

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0120064223

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120064223