0120091366
07-21-2009
Janese E. Gully, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janese E. Gully,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091366
Agency No. 4H-300-0260-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 19, 2008 final decision concerning her equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Sales, Services & Distribution Associate, PS-05, at the agency's Morrow Post Office in Morrow, Georgia.
On October 8, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the bases of disability (perceived) and in reprisal for prior protected activity when:
on or about June 5, 2007, she was not provided a light duty work assignment and subsequently sent home.
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, complainant thereafter withdrew her request. Consequently, the agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its December 19, 2008 final decision, the agency found that complainant did not establish a prima facie case of disability and reprisal discrimination.1 The agency further found that assuming, arguendo, that complainant established a prima facie case of disability and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Complainant's supervisor (S1) stated that on June 5, 2007, complainant was provided work within her limitations, and that she was requested to input data pertaining to the box section in the computer at 8:45 a.m. S1 further stated that at 10:00 a.m., complainant "clocked out for lunch. I asked the complainant if she had completed her assigned task, she told me no, it was lunchtime and she was going to lunch. Because the complainant had not been productive with the task assigned. I then told the complainant to go ahead and go home. I did not tell the complainant to go home and not return."
The Postmaster (PM) stated that on May 31, 2007, complainant went to the doctor during her lunch break and returned to work "with a disability/return to work certificate stating she was totally incapacitated from 5-31-07 to 6-2-07 and could return on 6-4-07 capable of performing light duty." PM further stated that on June 4, 2007, complainant presented a Duty Status Report (Form CA-17) stating "she could perform work part-time. The CA-17 stated intermittent lifting/carrying of 10 pounds, intermittent sitting, standing, walking, bending/stooping, pushing/pulling. Items listed were 1-6 hours per day. Pushing/pulling 1-4 hours per day. The CA-17 listed no twisting, no reaching above shoulder." PM stated that she informed complainant that her medical documentation would be forwarded to the medical unit for review but that until the request is reviewed, she would be accommodated within her restrictions.
Further, PM stated that on June 5, 2007, S1 sent complainant home because she had not been productive with her assigned task. PM stated that later that day, complainant came to the main office looking for a named employee (E1). PM stated that after she informed complainant that E1 "was riding a route, she said she had a toy for his daughter. As she was leaving "I asked her to come here, I wanted to talk to her. She stated she was off the clock and started towards her car. I said, well I'll see you tomorrow, she said 'I don't think so.'" PM stated that complainant did not report to work the next day, June 6, 2007, and that she called complainant and "left a message asking why she did not report for work on Wednesday, 6-6-07. I explained that I thought she misunderstood when the supervisor told her to clock out and go home on Tuesday. I told her to report to Park Place on Thursday, June 7, 2007 at 8:15." PM stated that after complainant failed to report to work on June 7 and 8, 2007, an official directive was sent to her on June 9, 2007 via certified mail, instructing her to return to duty. PM stated that complainant did not pick up the official directive until June 12, 2007 and she reported to work on June 13, 2007. Specifically, PM stated that when complainant "reported for work on Wednesday, June 13, 2007, she was worked within her light duty restrictions up to the needs of the service."
Moreover, PM stated that complainant's grievance was settled on September 10, 2007, compensating her "for all hours missed up to 8 hours each day, starting June 5, 2007 and until the grievant returned to full duty. Restore all lost benefits and change AWOL and LWOP to administrative leave."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. We further find that complainant has not demonstrated that these reasons were a pretext for discrimination.
Further, to the extent that complainant is alleging that the agency failed to provide her with a reasonable accommodation for her disability we find that the agency complied with its obligations. The record reflects that on June 5, 2007, complainant was provided a light duty assignment but was sent home because she had not been productive with her assigned task. The record further reflects that complainant was instructed to return to work the next day which she did not.
On appeal, has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. The Commission determines that the agency conducted a thorough investigation.
Therefore, after a review of the record in its entirety, including consideration of all statements 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
July 21, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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0120091366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091366