01974574
02-29-2000
Diane Kirkman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service Agency.
Diane Kirkman v. United States Postal Service
01974574
February 29, 2000
Diane Kirkman, )
Complainant, )
)
v. ) Appeal No. 01974574
) Agency No. 1C-441-1222-96
William J. Henderson, )
Postmaster General, )
United States Postal Service )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency discriminated against her in violation of
the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq; the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> This appeal is
accepted by the Commission in accordance with 64 Fed. Reg. 37,644, 37,
659 (1999)(to be codified at 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether complainant has established, by a
preponderance of the evidence, that the agency discriminated against
her on the bases of race (Black), sex (female), age (10/10/53), physical
disability (carpal tunnel syndrome, bilateral shoulder and neck pain),
mental disability (stress), and reprisal (prior EEO activity) when:
(1) on May 25, 1996, she was harassed by her Supervisor when told she
needed to report to a supervisor when leaving her work station area to
take breaks and lunches; and
(2) on June 7, 1996, when complainant received a seven-day suspension for
failure to follow instructions, unauthorized absences from assignment,
and conduct unbecoming a postal employee because of the incident cited
in allegation (1).<2>
BACKGROUND
In a formal complaint dated August 18, 1996, complainant alleged that
the agency discriminated against her as referenced above. The agency
accepted complainant's complaint and conducted an investigation. At the
conclusion of the investigation the agency notified complainant of her
right to request a hearing before an EEOC administrative judge (AJ), or a
final decision by the agency without a hearing. Prior to the pre-hearing
conference with an AJ, complainant withdraw her initial request for
a hearing and requested a final agency decision (FAD). Thereafter,
on April 16, 1997, the agency issued a FAD finding no discrimination.
It is from this decision that complainant now appeals.
On appeal, complainant continues to make arguments with regard to
the issue of whether she was required to work outside of her medical
restrictions. However, as previously noted, that issue is not presently
before us. This decision focuses solely on whether complainant was
harassed when she was told she needed to report to a Supervisor when
leaving her work station area to take breaks and lunches, and subsequently
issued a seven-day suspension for the reasons referenced above.
At the time of this complaint, complainant was performing a temporary
limited-duty job as a Distribution Clerk, PS-6, after having been
absent from her duties due to the occupational illness of carpal
tunnel syndrome from 1988 to 1995. During this time period complainant
received compensation from the Office of Workers Compensation Programs
(OWCP). Complainant testified that in January 1996, her doctor added
the medical restriction that she be given a fifteen minute break every
hour to her limited-duty position. Complainant's medical restrictions
are supported by the record.
Complainant testified that on May 23, 1996, she was instructed by her
Supervisor that she had to inform a Supervisor when she was going to
take a break or go to lunch. Furthermore, complainant stated that
she informed and showed her Supervisor medical documentation from her
doctor describing the medical restriction that she be required to take
a fifteen minute break every hour.
Complainant testified that on May 25, 1996, she was told to sweep the mail
even though her Supervisor was aware of her medical limitations. After
the Supervisor left the unit, complainant testified that she also left
the unit for a few minutes, then came back in order to head for lunch.
Upon the Supervisor's return, complainant was informed that she did not
report her break. Complainant stated that she did not take a break.
Complainant further testified that because of this "harassment" she
required the assistance of a union steward.
Unaware that a supervisor was present in the unit, complainant went the
union office without notifying her Supervisor during her next break.
Complainant believed that a call was placed from the union office to her
unit informing her superiors of her whereabouts. However, upon her return
to her assignment, she was told that she did not have permission to go
to the union office. Fifteen minutes later, she testified that she was
presented with a slip to go to the union office for fifteen minutes.
Complainant told the union steward she only had fifteen minutes to
conduct business. The union steward told complainant that what they had
to discuss would take longer and that he would notify her Supervisor.
Upon her return to the unit, complainant was informed by her Supervisor
that she took longer than fifteen minutes. Complainant testified that
she was under the assumption that the union steward had cleared the
time for her to take longer. On June 7, 1996, complainant was issued
a seven-day suspension for failure to follow instructions, unauthorized
absences from assignment, and conduct unbecoming a postal employee.
Complainant's Supervisor testified that complainant was issued the
suspension for just cause. She testified that complainant was given the
same instructions as all of the other limited-duty employees in the unit.
However, the Supervisor testified, rather than follow the instructions
complainant left her assignment without permission. The Supervisor
testified that the disciplinary action was progressive in light of
complainant's past disciplinary action in the previous five months.
ANALYSIS AND FINDINGS
Disparate Treatment
We will assume for purposes of this analysis that complainant is an
individual with a physical disability as defined by the Rehabilitation
Act. Complainant's allegations of discrimination based on race, sex,
age, and disability constitute claims of disparate treatment which are
properly analyzed under the three-tier order and allocation of proof
as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Prewitt v. United States Postal Service, 662 F.2d 292, 305 n. 19 (5th
Cir. 1981). In addition, in order to prevail on her age discrimination
claim, complainant bears the burden of persuasion to show that age was
a determinative factor in the agency's decision. See Loeb v. Textron,
Inc., 600 F.2d 1003 (1st Cir. 1979).
However, the McDonnell Douglas analytical paradigm need not be adhered
to in all cases. In appropriate circumstances, when the agency has
articulated legitimate, nondiscriminatory reasons for its conduct, the
trier of fact may dispense with the prima facie inquiry and proceed to
the ultimate stage of the analysis, i.e., whether the complainant has
proven by preponderant evidence that the agency's explanations were a
pretext for discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Shapiro v. Social
Security Administration, EEOC Request No. 05960403 (December 6,
1996). Since the agency has articulated a legitimate, nondiscriminatory
reason for its decision, the Commission will consider whether the agency's
explanation for its decision was a pretext for discrimination.
The Supervisor testified that all limited-duty employees were given
the same instructions with regard to informing a Supervisor when one
was going to take a break or go to lunch. Complainant's comparatives
were not under the named Supervisor's management control and therefore,
not similarly-situated. Complainant's assertions that she was harassed
or issued the suspension based on any of the bases alleged is not
supported by the record. The record fails to establish that the agency's
motivation for its actions was based on anything but her failure to
follow instructions. In addition, complainant failed to show that the
agency's reason for its action was a pretext for discrimination.
Reprisal
In order to establish a prima facie case of reprisal, a complainant must
show: (1) that she engaged in protected activity, e.g., participated in
a Title VII proceeding; (2) that the alleged discriminating official
was aware of the protected activity; (3) that she was disadvantaged
by an action of the agency contemporaneously with or subsequent to
such participation; and (4) that there is a causal connection between
the protected activity and the adverse employment action. Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976); see also Mitchell
v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Burrus v. United Telephone
Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982), cert. denied,
459 U.S. 1071 (1982). Assuming complainant established a prima facie
case of reprisal, she failed to show that the agency's reasons for its
actions, as set forth above, were reprisal for her protected activity.
CONCLUSION
Accordingly, it is the decision of the EEOC to AFFIRM the agency's final
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 29, 2000
DATE Carlton M. Hadden,
Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 We note that complainant raised a new allegation concerning
whether on May 26, 1996, she was instructed to work outside of her
medical limitations after the issues referenced above were accepted
for investigation. Complainant's reasonable accommodation allegation
was not originally raised with an EEO counselor; therefore, it was
not addressed in the FAD, nor will it be addressed in this decision.
However, complainant may contact a counselor for appropriate counseling
in accordance with 29 C.F.R. � 1614.105. Since the agency noted that
complainant first raised the issue during the investigation, the date of
the EEO Counselor contact shall be the date the agency stated complainant
raised the issue, October 16, 1996.