Donna L. Wozniak, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (New York Area), Agency.

Equal Employment Opportunity CommissionDec 8, 2000
01981961 (E.E.O.C. Dec. 8, 2000)

01981961

12-08-2000

Donna L. Wozniak, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (New York Area), Agency.


Donna L. Wozniak v. United States Postal Service

01981961

December 8, 2000

.

Donna L. Wozniak,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(New York Area),

Agency.

Appeal No. 01981961

Agency No. 4A-088-0010-97

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<2>

Complainant alleged that she was discriminated against on the bases of

race (Caucasian), color (white), sex (female), disability (19% loss of

right knee), and reprisal (prior EEO activity), when, on October 1, 1996,

she was informed the she could not change her work schedule in order to

participate in the Combined Federal Campaign (CFC) detail.

The record reveals that during the relevant time, complainant was

employed as a Modified City Carrier, at the agency's Kendall Park,

New Jersey facility. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on December 26, 1996. At the conclusion of the investigation,

complainant was informed of her right to request a hearing before an EEOC

Administrative Judge or alternatively, to receive a final decision by the

agency. Complainant requested that the agency issue a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of discrimination on any bases since she failed to

show she was treated differently than a similarly situated individual

outside of her protected classes. The agency then summarily concluded

that complainant was not discriminated against.

Complainant did not submit contentions on appeal. In response to the

agency's contentions, see n. 2, complainant submits an untimely response

and arguments in support of her appeal.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d

292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,

545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal

cases), we find that contrary to the agency's conclusion that complainant

failed to establish a prima facie case of discrimination, complainant

did establish a prima facie case of reprisal discrimination because she

established she was denied a change in schedule in close enough proximity

to prior EEO complaints such that a causal connection is established.

Furthermore, complainant established that the responsible official was

aware of her prior EEO activity.

As for her remaining bases, we agree with the agency's finding that

complainant failed to establish an inference of discrimination, since

she failed to present evidence which, if unrebutted, would support

an inference that the agency's actions resulted from discrimination.

See O'Connor v. Consolidated Coin Caters Corp., 116 S.Ct. 1307(1996);

Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC

Notice No. 915.002, n. 4 (September 18, 1996). Additionally, complainant

failed to present any medical evidence or other testimony that would

establish her knee impairment substantially limits a major life activity.

Assuming, arguendo, that complainant is a qualified individual with

a disability, and further assuming that she established an inference

of discrimination, the Commission further finds that complainant

failed to present evidence that more likely than not, the agency's

articulated reasons for its actions were a pretext for discrimination.

In reaching this conclusion, we note that complainant's Postmaster

informed complainant that it was district policy to require full time

CFC canvassers to work their regular schedule, as opposed to assigning

them to a detail assignment. According to the Postmaster, complainant's

regular schedule consisted of rotating non-scheduled days. In response

to complainant's allegations that other individuals on details were

provided with stationary non-scheduled days, the Postmaster replied that

these individuals did not work on the CFC, but worked on an Officer in

Charge detail, or were assigned to other details.

The CFC Coordinator averred that she and the CFC Chairperson decided that

CFC Canvassers would not canvass on a full time basis since supervisors

had expressed concerns that CFC duties would interfere with regular

work schedules. She also averred that complainant could have effectively

participated in the CFC by canvassing on Saturdays, but instead, resigned

from the campaign. She recalled that complainant's Postmaster did not

have a problem allowing complainant to work on the CFC, if it was during

her regular schedule.

Complainant failed to show that other CFC workers were permitted to

change their non-scheduled days, or otherwise show the agency's reasons

for its actions lacked credence. She also failed to present sufficient

evidence of a discriminatory or retaliatory motive.

Therefore, after a careful review of the record, and arguments and

evidence not specifically addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 8, 2000

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2In response to complainant's appeal, the agency argues that the appeal

should be dismissed in light of complainant's failure to send the agency

a copy of her Notice of Appeal, pursuant to EEOC Regulation 29 C.F.R. �

1614.403(b), which requires that complainant serve the agency with a copy

of the appeal. In the alternative, the agency argues that we should

disregard any statement made in support of complainant's appeal since

she also failed to supply the agency with such. We decline to dismiss

the appeal.