01975352
05-18-2000
Diane Kirkman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
Diane Kirkman v. United States Postal Service
01975352
May 18, 2000
Diane Kirkman, )
Complainant, )
) Appeal No. 01975352
v. ) Agency No. 1C-441-1099-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and employment discrimination
based on race (Black), sex (female), age (D.O.B. 10/10/53), physical
disability (bilateral carpal tunnel syndrome and shoulder pain), and
mental disability (stress), in violation of 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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791, et seq.<1> Complainant alleges she was subjected to retaliation
and discrimination on March 23, 1996, when her supervisor (SP) required
her to work outside of her medical restrictions and verbally abused her
regarding the restrictions. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the FAD is AFFIRMED.
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk at the agency's John O. Holly facility
in Cleveland, Ohio. Believing she was a victim of retaliation and
discrimination as referenced above, complainant sought EEO counseling
and, subsequently, filed a complaint on May 24, 1996. At the conclusion
of the investigation, complainant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ), but
subsequently withdrew her request, and the agency proceeded to issue a
FAD on May 16, 1997.
The FAD did not address complainant's contention that she was harassed
by SP because of her medical restrictions, but rather defined the claim
solely as whether complainant was required to work outside of her medical
restrictions. The FAD concluded that complainant failed to establish a
prima facie case of discrimination based on race, sex, or age because
she presented no evidence that similarly situated individuals not in her
protected classes were treated differently under similar circumstances,
or other evidence sufficient to permit an inference of discrimination.
Specifically, the FAD found that the comparator employees identified by
complainant as receiving more favorable treatment included persons of
her own race and sex, and two employees who were significantly older
than complainant. In addition, while the FAD failed to note whether
or not the proffered comparators had engaged in prior EEO activity or
were disabled within the meaning of the Rehabilitation Act, the FAD
found that the employees identified by complainant as receiving more
favorable treatment had different medical restrictions than complainant,
and therefore were not similarly situated to complainant.
The FAD further concluded that complainant failed to establish a prima
facie case of retaliation because SP denied that complainant ever worked
outside of her medical restrictions. Moreover, the FAD concluded that
complainant failed to establish that she was an "individual with a
disability" within the meaning of the Rehabilitation Act.<2> Finally,
the FAD concluded that even assuming arguendo complainant had established
a prima facie case of discrimination and/or retaliation, SP proffered
legitimate non-discriminatory and non-retaliatory reasons for her actions,
which complainant had not demonstrated to be pretextual.
On appeal, complainant contends that the agency failed to consider a
number of her arguments. In addition, complainant has submitted medical
documentation regarding her condition and work restrictions, as well as
three unsworn witness statements which were not part of the record below.
The agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979);
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission
concludes that complainant failed to establish a prima facie case of
discrimination or retaliation with respect to the claims that complainant
was required to work outside of her medical restrictions, or was harassed
because of the restrictions, and that even assuming that complainant
has established a prima facie case of discrimination and/or retaliation,
she has not satisfied her burden to prove by a preponderance of the
evidence that the reason for SP's alleged actions was discrimination
or retaliation.
In reaching this conclusion, we note that even assuming complainant
established a prima facie case of disparate treatment or harassment,
she has not met her ultimate burden to prove by a preponderance of the
evidence that she was subject to the adverse treatment alleged, i.e.,
required to work outside her medical restrictions or harassed because of
her medical restrictions. SP filed a sworn affidavit, with an eleven page
supplemental statement attached, denying these allegations. SP asserts
that she told complainant she could not sit and talk rather than case
mail, and that she was permitted to talk as long as she continued to do
her assigned work. SP asserts that she told complainant that complainant
was "not working up to her restrictions," i.e., not performing the amount
of work expected of her notwithstanding her restrictions. SP denies
using any profanity toward complainant, and contends that she did not
verbally abuse complainant, but rather properly, and repeatedly, spoke to
complainant about perceived problems with complainant's work performance.
As noted above, complainant has submitted unsworn statements from
co-workers on appeal. Two are from other employees who assert that, like
complainant, they were assigned to do "patching" rather than "casing" of
mail due to medical restrictions. The third statement is from a co-worker
who states she witnessed SP yelling at complainant and speaking to her in
an unprofessional and sarcastic manner. The statement does not specify
how many times this occurred, if more than once. While complainant
has failed to establish that this new evidence was unavailable during
the investigative process so as to warrant its consideration for the
first time on appeal, even if we consider the statements they do not
affect the disposition reached. None of these statements refutes SP's
affidavit. Even assuming arguendo that SP did yell at complainant or
speak to her in a sarcastic manner, this does not establish that SP did
so for discriminatory or retaliatory reasons. SP asserts that she
admonished complainant for failure to perform her duties as required
notwithstanding her medical restrictions. This testimony stands in
direct conflict with complainant's assertion that, to the contrary, she
was subjected to gratuitous verbal abuse and pressure to work outside
of her medical restrictions. The evidence is therefore in equipoise,
and complainant has not established by a preponderance of the evidence
that she was subjected to the disparate treatment or harassment alleged.
Johnson v. Department of the Army, EEOC Appeal No. 01934836 (October
28, 1994), request to reconsider denied, EEOC Petition No. 05950185
(May 23, 1996); see also Russell v. United States Postal Service, EEOC
Appeal No. 01956909 (November 6, 1997); Lozoya v. Department of Labor,
EEOC Appeal No. 01944586 (March 7, 1996).
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, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
Date
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 In light of our disposition of this matter, we need not reach the issue
of whether complainant is a qualified individual with a disability,
because even assuming that she is, she has failed to establish by a
preponderance of the evidence that she was treated differently because
of her disability.