0120064701
03-25-2008
Estella D. McRae, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Estella D. McRae,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01200647011
Agency No. 1J-486-0001-06
DECISION
On August 11, 2006, complainant filed an appeal from the July 14, 2006,
final agency decision (FAD) concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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 FAD.
At the time of events giving rise to this complaint, complainant worked as
a Part-time Flexible Mail Processing Clerk, Level PS-05, at the Flint,
Michigan Processing and Distribution Center. On February 14, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the basis of disability when, effective November 7, 2005,
she was terminated from employment.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that she was subjected to discrimination as alleged.
The FAD first noted that complainant initially raised additional
allegations of discrimination which were subject to dismissal for untimely
EEO counselor contact. The FAD then found as follows concerning the
termination issue: complainant did not establish a prima facie case of
disability discrimination because she did not make the initial showing
that due to her impairments she is disabled within the meaning of the
Rehabilitation Act. Complainant also failed to prove that the agency
regarded her as disabled. Nevertheless, the agency in fact accommodated
complainant when she requested to wear cotton gloves and stand only 2
hours each day. Further, complainant did not identify any comparators,
not in her protected group, who were treated more favorably by the same
management officials, when they had similar attendance deficiencies.
Nevertheless, assuming complainant had established a prima facie
case management articulated legitimate, nondiscriminatory reasons for
terminating complainant. Specifically, complainant was removed for
irregular attendance and failure to adhere to postal policy rules and
regulations regarding attendance. The record evidence establishes that
complainant had 1,508 hours of unscheduled absences from August 9, 2003
through September 17, 2005. In complainant's case, the agency adhered to
its progressive discipline structure in that complainant was first issued
Letters of Warning, then Suspensions, and finally a Notice of Removal.
Complainant stated in her affidavit that her absences were caused by an
ill son, a broken ankle, two severe illnesses back to back, car trouble,
a severe flare-up of her work-related condition, neck pain, lower back
pain, trouble sleeping, stress, bacterial pneumonia and dehydration,
and a possible ruptured disc. The FAD concluded that complainant has
not presented persuasive evidence that the agency's explanation for its
action is merely pretext for disability-based discrimination.
Complainant raises no new arguments on appeal. The agency asks
the Commission to affirm the FAD. Initially, we note that we shall
not address the agency's decision to dismiss the other claims which
complainant raised in her formal complaint, since on appeal, complainant
does not challenge them.
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").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She
must generally establish a prima facie case by demonstrating that she
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Assuming complainant is disabled pursuant to the Rehabilitation
Act, and that she otherwise established a prima facie case of
disability-discrimination, the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. Specifically, complainant
was terminated due to irregular attendance between July 8, 2005 and
September 17, 2005. The Notice also indicates that complainant's past
discipline factored into the decision to remove her from employment.
Although complainant generally contends that her absences have been
related to her disability, complainant specifically states in her
affidavit that from July 23, 2005 through August 9, 2005, she could
not go to work because of "bacterial pneumonia and dehydration."
The record supports that she was off work during that time period for
this non-disability related illness. Complainant further indicates that
on August 21, 2005, her son injured himself and she had to care for him.
As for these particular dates, therefore, the agency could not have been
motivated by disability-based animus.
We turn therefore, to addressing the occasions on which complainant
states she was absent because of her disability. Under the Commission's
regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual
with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. �� 1630.2(o) and (p). In this case,
although the EEOC's Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, Notice
No. 915.002 at question 16 (October 17, 2002) indicates that "[p]ermitting
the use of accrued paid leave, or unpaid leave, is a form of reasonable
accommodation when necessitated by an employee's disability," there is
no evidence that complainant requested (or supported her request with
medical documentation), leave as a form of reasonable accommodation.
Additionally, we note that the EEOC's Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities at Question
31 states that reasonable accommodation is "prospective" and employers
are not required to excuse past misconduct. Accordingly, based on this
record, complainant has not persuaded the Commission that the agency
removed her from employment in violation of the Rehabilitation Act.
We AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 25, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120064701
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036