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.