0120065117
03-12-2009
Elizabeth A. Stephens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Elizabeth A. Stephens,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120065117
Agency No. 4C-150-0021-06
DECISION
On September 6, 2006, complainant filed an appeal from the agency's August
10, 2006 final 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. 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 agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a city letter carrier at the agency's facility in Wheeling, West Virginia.
Prior to October 2005, complainant worked under medical restrictions
which allowed her to walk, stand, and drive for forty minutes for every
two hours she worked. The record reveals that complainant suffered an
injury on the job in late September 2005. Complainant returned to duty on
December 5, 2005, after providing management with medical documentation
from her physician allowing her to return to duty. Complainant's new
medical restrictions upon her return allowed her to stand for up to one
hour for every four hours of complainant's work schedule and walk for
up to thirty minutes for every shift of her work schedule.
On December 31, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of sex (female) when:
1. On December 6, 2005, following complainant's return to work from an
on-the-job injury, complainant was not offered a limited duty assignment,
was worked outside of her medical restrictions, and was humiliated when
she was forced to sit for hours on a stool with no back in a corner
without speaking to anyone; and,
2. On December 13, 2005, complainant's duty hours were changed from 7:00
a.m. until 3:30 p.m. to 3:00 p.m. until 11:30 p.m. when she was provided
with a limited duty assignment.
Complainant further alleged that the agency subjected her to reprisal
for prior EEO activity when:
3. Complainant was not provided a new limited duty assignment or allowed
to return to work from December 28, 2005 until March 31, 2006;
4. On March 21, 2006, complainant received a Letter of Warning for
Failure to be Regular in Attendance/Absence Without Leave (AWOL);
5. On March 31, 2006, complainant was offered a limited duty assignment
which changed her work hour schedule from 7:00 a.m. until 3:30 p.m. to
10:00 a.m. until 6:30 p.m.;
6. On April 12, 2006, complainant was issued a "Seven-Day No Time Off
Suspension for Failure to Meet the Requirements of Your Position/AWOL"
for her absence between December 29, 2005 through March 30, 2006; and,
7. On April 20, 2006, complainant was given an Offer of Modified
Assignment, which only permitted complainant to work four hours per day
(10:00 a.m. until 2:00 p.m.), yet a co-worker, who was also on limited
duty, was permitted to work her assigned tour.1
In investigative affidavits, management officials stated that
complainant was given a limited duty offer on December 5, 2005, and a
trainer evaluated the assignment to see if it complied with complainant's
restrictions. Management stated that complainant was never directed to sit
on a stool in a corner but was provided with a stool and rest bar so that
she could perform the duties of her assignment. Management further stated
that because complainant contended that she could not perform the duties
of the December 5, 2005 assignment and her doctor imposed additional
restrictions on complainant's driving, the agency gave complainant a
new job offer on December 13, 2005, which complainant accepted.
Regarding claim 2, the agency stated that complainant's work hours were
changed because there was insufficient work available within her new
restrictions within her regular tour. Management further stated that
while there was work available in another craft, the work available at
the time of day complainant previously worked would not have been within
complainant's restrictions.
Regarding claim 3, the agency stated that complainant reported an injury
on December 28, 2005 and was sent to the emergency room. Management
stated that complainant was not medically cleared to return to work from
the back injury until February 24, 2006. Management also stated that
complainant's podiatrist rescinded his approval of the December 13, 2005
job offer and faxed a correspondence to the Injury Compensation Office in
Pittsburgh, Pennsylvania on January 9, 2006 in which he maintained that
complainant had not been able to work since December 28, 2005 because
of neck and back strain.
The agency further stated that complainant was not allowed to return to
work until March 31, 2006 because she failed to present requested medical
documentation required for her to return to duty until February 24, 2006.
Management stated complainant was sent applicable leave regulations and
two return to duty letters, dated February 2, 2006 and February, 14,
2006, but complainant did not follow management's instructions until
February 24, 2006, when she provided a fitness for duty examination
results to the agency.
Management also stated that complainant's physician never filled out a new
form CA-17 with new restrictions for a claimed back injury; therefore,
management could not provide complainant with a new limited duty offer,
and the December 13, 2005 assignment remained in effect. Management stated
that complainant submitted a new Form CA-17, on February 10, 2006, which
was signed February 9, 2006, and gave only restrictions for complainant's
foot injury; however, management maintained that the form was invalid
because it did not have any relevance to support the back injury claim on
December 28, 2005. Management stated that on March 31, 2006, complainant
finally returned to work and submitted a form CA-17 for a February 1,
2006 examination, which was signed and dated by complainant's physician
on March 24, 2006. Management stated that complainant was then offered
a new limited duty assignment based on her medical restrictions on the
form CA-17, and complainant accepted the assignment noting that she was
"checking with physician on hours prior to return-signed under protest."
With respect to claim 4, management stated that complainant was issued
a letter of warning because she failed to provide requested medical
documentation to the agency in a timely manner. Regarding claim 5,
management stated that complainant's work hours were changed to provide
her with work within her new restrictions.
With respect to claim 6, management stated that complainant was issued
a letter of suspension because complainant failed to timely provide
management with requested medical documentation that was necessary
for her to return to work. Management stated that complainant did not
provide the requested medical documentation until February 24, 2006,
and complainant did not apply for Family Medical Leave Act (FMLA) until
after the agency issued a letter of warning on March 21, 2006.
Regarding claim 7, management stated after complainant brought new
restrictions on a form CA-17, he offered her a fourth job offer to
accommodate her ability to do more productive work within her craft.
Management maintained that the assignment only provided work for four
hours per day because complainant's restrictions indicated that she could
only walk two hours per day on her route, drive for up to thirty minutes
per day, stand for up to one hour per day, and sit for up to thirty
minutes per day. Management further stated that because complainant's
route needed to be cased prior to her going to the street, the agency
gave her a 10:00 a.m. start time to allow her to case as tolerated.
Management stated that complainant could have adjusted her schedule
so that she worked her original hours if she was able to do the duties
associated with those original hours.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). On June 26,
2006, complainant requested a final decision, pursuant to 29 C.F.R. �
1614.110(b). In its August 10, 2006 decision, the agency concluded that
that complainant failed to prove that she was subjected to discrimination
as alleged. Specifically, the agency found that complainant failed to
establish a prima facie case of sex discrimination for claims 1 and 2
because complainant did not prove that similarly situated male employees
were treated more favorably than she was under similar circumstances.
The agency further found that complainant failed to establish a prima
facie case of reprisal with respect to claims 2, 4, 5, and 7 because
agency management was not aware of complainant's prior EEO activity during
the relevant time period. The agency also determined that complainant
failed to prove that the agency's articulated reasons for its actions
were pretext for unlawful discrimination or reprisal.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency improperly found no
discrimination because she was the only employee instructed by the
Officer-in-Charge not to speak to her co-workers and sit at a case for
three hours; the Officer-in-Charge lied when he stated that he was unaware
of complainant's previous EEO activity until March 10, 2006, although an
EEO report dated January 3, 2006 indicated that the Officer-in-Charge had
already provided an EEO statement; the agency escorted complainant from
the premises when complainant came to work on February 10, 2006; and, on
February 10, 2006, the agency failed to provide complainant's physician
with a CA-17 form so that complainant could be granted a new limited
duty assignment. The agency requests that we affirm its final decision.
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 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").
In a claim such as the instant one which alleges disparate treatment,
and where there is an absence of direct evidence of such discrimination,
the allocation of burdens and order of presentation of proof is a
three-step process. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000) (applying the analytical framework described in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA
disparate treatment claim). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that
a prohibited consideration was a factor in the adverse employment
action. Kimble v. Department of the Navy, EEOC Appeal No. 01983020
(Aug. 22, 2001). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action,
or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion,
by a preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
Assuming arguendo that complainant established a prima facie case of
discrimination and reprisal, we nonetheless find that the agency provided
legitimate, non-discriminatory reasons for its actions, as detailed above.
Complainant maintains that the agency's explanations are pretextual
because she was the only employee instructed by management not to speak to
her co-workers and sit at a case for three hours. Management maintained
that two supervisors tried to assist complainant by showing her how to
use and adjust the rest bars, and a supervisor provided complainant
with a chair with a back. Management also stated that it directed
complainant not to stand up and talk to other carriers or talk on the
cell phone so that she could perform the duties of her assignment.
Additionally, complainant argues that the Officer-in-Charge lied to the
EEO investigator when he stated that he was unaware of complainant's EEO
activity until March 10, 2006, although an EEO report indicated that the
Officer-in-Charge had already provided a statement for complainant's
case by January 3, 2006. However, while the Officer-in-Charge stated
that he "believed" that he learned of complainant's EEO activity on
March 10, 2006, his declaration was not emphatic and reflected a degree
of uncertainty about the date in his mind. We find no evidence that
the Officer-in-Charge's statement was anything more than a mistake in
this case.
Complainant further maintains that she was not allowed to work when she
reported to duty on February 10, 2006. However, the agency persuasively
maintained that complainant was not allowed to work at that time
because complainant was not cleared to work until February 24, 2006, and
complainant did not provide the agency with new restrictions until March
31, 2006. Finally, regarding complainant's claim that the agency failed
to provide her with a requested CA-17 form on February 10, 2006, we note
that complainant acknowledges that the union provided complainant with the
form and completed it for her on or about February 10, 2006. Moreover,
the record indicates that the form submitted by complainant on February
10, 2006 was invalid because it did not address complainant's December 28,
2005 back injury. Based on the foregoing and upon review of the record,
we find that complainant failed to prove that the agency's articulated
explanations were pretext for unlawful discrimination or reprisal, and the
agency properly found no discrimination or reprisal.
CONCLUSION
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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
__March 12, 2009________________
Date
1 We note that complainant's complaint initially contained six claims
which were dismissed by the agency in various correspondences in early
2006. However, we exercise our discretion to not address these dismissals
herein because complainant does not contest these dismissals on appeal.
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0120065117
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120065117
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