0120091991
11-24-2009
Jeanette S. Daugherty,1 Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jeanette S. Daugherty,1
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091991
Agency No. 1C-431-0043-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's undated final decision concerning an 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.
In May 2008, complainant was hired as a Casual Clerk at the agency's
Columbus Processing and Distribution Center in Columbus, Ohio, subject
to a ninety-day probationary period.
On September 10, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her
on the basis of disability (pregnancy) when:
on July 8, 2008, her request for accommodation was denied and she was
subsequently terminated from her Casual Clerk position.
On September 18, 2008, the agency issued a document titled "Acceptance for
Investigation." Therein, the agency accepted the claim that complainant
was discriminated against on the basis of sex when on July 8, 2008, her
request for accommodation was denied and she was subsequently terminated
from her Casual Clerk position. The agency, however, dismissed the
basis of disability. Specifically, the agency concluded that a claim
of discrimination on the basis of "pregnancy" is properly treated as a
claim based on sex, and not as a claim based on disability.2
Following the investigation, complainant was provided with a copy of the
report of the investigation and notice of the right to request a hearing
before an EEOC Administrative Judge or a final decision within thirty
days of receipt of the correspondence. Complainant did not respond.
On an unspecified date, the agency issued the instant final decision.
In its final decision, the agency found no discrimination. The agency
determined that complainant did not establish a prima facie case of
sex discrimination. The agency further found, assuming, arguendo,
that complainant established a prima facie case of sex discrimination,
management articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to show were a pretext.
Complainant's immediate supervisor (S1) stated that she was the deciding
official to terminate complainant during her probationary period because
"she could no longer perform the functions of the job she was hired for."
S1 stated that at the time complainant was hired, she was assigned
"to the flat unit on Tour 3. As a flat clerk you are required to
load and off load flat tubs of mail that are sometimes in excess of
25 lbs. Pushing heavy equipment also." S1 stated that on July 8, 2008,
complainant submitted a note from her doctor stating "she could not lift
any more than 25 lbs."
Further, S1 stated that complainant's request for accommodation was
denied because "she was not eligible for light duty." S1 stated that
according to the agency's labor contracts, it states that "light duty
assignments are granted for career employees only."
MDO stated that she was the deciding official concerning complainant's
request for accommodation. Specifically, MDO stated that she denied
complainant's request on the grounds that complainant was ineligible
for light duty "because she was not a career employee." MDO stated that
complainant was hired as a temporary casual employee "to work a specific
job in the flat unit, which required specific physical requirements."
MDO stated that complainant informed management that "she could not
perform the duties in which she was hired and requested 'light duty.'
We do not provide light duty assignments for temporary employees.
Casuals must be able to perform the duties of the position in which they
were hired for." MDO stated that after complainant submitted medical
documentation which stated that she could not perform the duties of her
position, S1 "came to me for guidance. [Complainant] requested to work
'light duty' in another area."
Regarding the termination, MDO stated that she concurred with S1's action
in terminating complainant's employment during her probationary period
because of her "inability to perform the duties of the position in which
she was hired." Moreover, MDO stated that she did not discriminate
against complainant based on her sex.
Complainant argued that agency management did not notify her of her
eligibility for FMLA even though she was eligible for FMLA. However,
MDO stated that FMLA would not have been beneficial for complainant.
Specifically, MDO stated that FMLA "would only have kept [complainant]
on the rolls for four months. It would not have given her any light duty
or pay. She would not have been allowed to work due to the fact that
she could not perform the duties for the job in which she was hired."
The record contains a copy of complainant's performance evaluation upon
her termination dated July 8, 2008. In the evaluation, S1 stated that
complainant "had excellent attendance and was a top performer in the
flat unit. She had a positive attitude and went above and beyond her
normal duties."
On appeal, complainant argues that the agency's response to her medical
request for accommodation "was not only to deny her an opportunity to
continue her job with minimal accommodation but to terminate her on the
spot." Complainant also contends that she was treated less favorably
than two similarly situated females under similar circumstances.
In support of her assertions, complainant submits a copy of a named
female employee's affidavit stating that she was accommodated during
her first and second pregnancies. Complainant also submits a copy of
a named agency official's statement stating that he accommodated a name
female employee during her pregnancy due to her lifting restrictions.
The Pregnancy Discrimination Act of 1978 (PDA) amended Section 701 of
Title VII of the Civil Rights Act of 1964 by adding Paragraph (k) which
states that claims of discrimination based on sex include, but not limited
to, "because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth or related
medical conditions shall be treated the same for all employment-related
purposes, including receipt of benefits under fringe benefit programs, as
other persons not so affected but similar in their ability or inability
to work...." 42 U.S.C. � 2000e(k); see also 29 C.F.R. � 1604.10.
In the Appendix to Part 1604, Questions and Answers on the Pregnancy
Discrimination Act, the Commission makes clear that: "The basis principle
of the Act is that women affected by pregnancy and related conditions
must be treated the same as other applicants and employees on the basis
of their ability or inability to work. A women is, therefore, protected
against such practices as being fired, or refused a job or promotion,
merely because she is pregnant....If other employees who take disability
leave are entitled to get their jobs back when they are able to work
again, so are women who have been unable to work because of pregnancy."
Claims brought under the PDA are examined using the traditional disparate
treatment analysis. Bernardi v. USPS, EEOC Appeal No. 01954090 (August
21, 1997). In the absence of direct evidence of discrimination, the
allocation of burdens and order of presentation of proof in a Title VII
case is a three-step process. McDonnell-Douglas Corp. v. Green, 411
U.S. 792 (1973). A complaint must first 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. McDonnell
Douglas, 411 U.S. 792 (1973); 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. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, the complainant must demonstrate by a preponderance of
the evidence that the agency's reasons were a pretext for discrimination.
At all times, complainant retains the burden of persuasion, and it is her
obligation to show by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).
At the time of the events herein, complainant was a pregnant female and
within a class protected under Title VII disparate treatment. We find
that complainant has presented a prima facie case of sex discrimination
with regard to the agency's actions not granting her light duty
request to work in another area and instead terminated her during her
probationary period. The burden of proceeding now belongs to the agency
to articulate a legitimate, nondiscriminatory reason(s) for its actions.
Texas v. Department of Community Affairs v. Burdine, supra. The agency's
explanation must be sufficiently clear to raise a "genuine issue of fact"
as to whether discrimination occurred. Id., at 254. Moreover, it must
"frame the factual issue with sufficient clarity so that [complainant]
will have a full and fair opportunity to demonstrate pretext." Id.,
at 255-256.
In this case, no reason presented with sufficient clarity was articulated
in the final agency decision, nor may one be discerned from the record.
The Commission indeed acknowledges that the agency has asserted that
complainant's request for an accommodation was denied because complainant
was not eligible for light duty because she was not a career employee;
and that she was terminated based upon her inability to perform the duties
of the position for which she was hired. However, the Commission is
nevertheless unable to discern from the present record whether employees
not in complainant's protected class, in similar circumstances, were
treated differently. Specifically, the Commission cannot determine
whether individuals (a) out of complainant's protected class (b)
who were not career employees (c) who could not temporarily perform
the duties of his or her position (i.e., a broken arm); (d) were not
provided light duty; and (e) were subsequently terminated.
The agency's final decision is VACATED. This matter is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days from the date that this decision becomes
final, the agency is ORDERED to take the following action:
Conduct a supplement investigation regarding whether individuals
out of complainant's protected class, in similar circumstances
(non-career employees, temporarily incapable of performing
the duties of the position), were or were not provided light
duty during the period of incapacity and were or were
not terminated. Without limitation, the agency shall produce
all available documentary evidence and obtain witness affidavits
on this issue.
Thereafter, the agency shall provide a copy of the supplemental report
to complainant and inform her of her right to a hearing before an EEOC
Administrative Judge or a final decision. The agency shall provide
written notification to the Compliance Officer as the address set forth
below that the ordered actions have been taken.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
November 24, 2009
__________________
Date
1 We note that during the relevant time, complainant changed her name
from Jeanette L. Spitzer to Jeanette S. Daugherty.
2 The Commission notes that pregnancy itself is not a "disability"
for purposes of the Rehabilitation Act, and claims of employment
discrimination based on pregnancy are covered by Title VII. See
Appendix to 29 C.F.R. Part 1604, Questions and Answers on the Pregnancy
Discrimination Act; EEOC Compliance Manual on Definition of the Term
"Disability," No. 915.002 at n.10 (March 14, 1995).
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0120091991
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091991
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0120091991