01994388
11-16-2001
Gladys S. Vandesande, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Gladys S. Vandesande v. United States Postal Services
01994388
11/21/01
.
Gladys S. Vandesande,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast/Southwest Region),
Agency.
Appeal No. 01994388
Agency No. 4-H-330-1262-96
DECISION
Gladys S. Vandesande (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination on the bases of reprisal (prior EEO activity) and physical
disability (work related injury), in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
The appeal is accepted in accordance with 29 C.F.R. �1614.405. For the
following reasons, the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether complainant was subjected to discrimination
on the aforementioned bases when on or around October 14, 1995, she was
denied a step increase.
BACKGROUND
The record reveals that at the time complainant filed the instant
complaint, she was employed as a City Letter Carrier PS-05, at the
agency's Hialeah Post Office in Hialeah, Florida. In an undated letter
from her Postmaster, complainant was notified that because she had
accumulated at least thirteen weeks of leave without pay (LWOP), the
scheduled date of her next step increase would be deferred. In its
notification letter, the agency noted that it was taking this action
pursuant to the pertinent section of its Employee and Labor Relations
Manual (ELM) which states that when an employee has been on LWOP for
13 weeks or more, the scheduled date for the next step increase will be
deferred for seven pay periods. Ex. 4
In responding to complainant's allegation of discrimination, the Human
Resources Specialist (HRS) (disability and history of prior EEO activity
unspecified), who serviced complainant's organizational unit stated that
step deferments for leave without pay are processed automatically by
the agency's office in Minneapolis. Further, the HRS stated that once
complainant's Workmen's Compensation claim was accepted on December 8,
1995, complainant's step increase was granted with an effective date
which was retroactive to October 14, 1995.
At the conclusion of the investigation, the agency informed complainant of
her right to request a hearing or a final agency decision. Complainant
failed to make an election within the prescribed time period, and on
March 29, 1999, the agency issued a FAD. In its FAD, the agency found
that complainant failed to establish a prima facie case of disability
or reprisal discrimination. In the alternative, the agency found that
even if complainant had succeeded in establishing a prima facie case of
discrimination, she failed to show pretext.
CONTENTIONS ON APPEAL
Neither complainant nor the agency raised any new contentions or arguments
on appeal.
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) she is an "individual with a disability"; (2)
she is "qualified" for the position held or desired; (3) she was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. In order
to satisfy her burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether she has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
the agency's HRS, stated that step deferments for leave without pay
are processed automatically by the agency's office in Minneapolis.
The HRS added that once complainant's Workmen's Compensation claim was
accepted on December 8, 1995, complainant's step increase was granted
with a retroactive date of October 14, 1995. The HRS's testimony on this
matter was supported by the pertinent section of the ELM aforementioned.
Based on the HRS's testimony, we find that the agency has articulated
legitimate non-discriminatory reasons for deferring complainant's step
increase. Because the agency articulated a legitimate non-discriminatory
reasons for the challenged personnel action, complainant must demonstrate
that the reasons are pretextual and/or that the agency was motivated by
discriminatory animus in taking the challenged action.
Upon reviewing the record as a whole, the Commission finds that
complainant failed to show by a preponderance of the evidence that
the reason articulated by the agency for its action was a pretext for
discrimination. In this regard we note that complainant did not submit
an affidavit to the EEO Investigator and she did not elaborate on her
allegations of retaliatory and discriminatory treatment anywhere else
in the record.
CONCLUSION
Therefore, the agency's finding of no discrimination with respect to
the challenged action is AFFIRMED.
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
11/16/01
__________________
Date