01a46092
03-16-2005
Joyce Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Joyce Hill v. United States Postal Service
01A46092
March 16, 2005
.
Joyce Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A46092
Agency No. IG-787-0023-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Supervisor, Distribution Operations (SDO) on tour 3, at
the Waco, Texas Processing and Distribution Center (P&DC). On January
7, 2003, the acting manger of distribution operations (MDO) issued
complainant an official Letter of Warning (LOW) for failure to follow
Postal Service policy. The record reveals that complainant gave her
login and password for the Postal Service's time management program to
a non-supervisory craft employee. The Postal Service regulations state
that all employees with computer access �will not provide [their] logon
ID to another person.� On December 20, 2002, complainant gave her logon
password to another employee, so that in complainant's absence, this other
employee could correct clock rings errors of employees in complainant's
pay location. In January 2003, management notified complainant that
she was being relocated to the annex building. Supervisors and other
employees were moved between the main building and the annex to meet the
business needs of the Postal Service. Complainant was one of numerous
employees transferred to the annex. On February 4, 2003, complainant
received a letter informing her that her Family Medical Leave Act (FMLA)
documentation needed to be re-certified for her current condition.
Complainant perceived all of these acts as discriminatory and contacted
an EEO counselor. Subsequently, on April 15, 2003, she filed a
formal complaint, alleging that she was discriminated against on the
basis of disability and in reprisal for prior EEO activity (arising
under Title VII and the Age Discrimination in Employment Act of 1967
(ADEA)). Specifically, complainant makes three claims. First, she
alleged that the LOW was discriminatory because two other employees
were never given LOWs when they used other peoples' passwords with
management's knowledge. Complainant argued that the use of manager's
passwords by craft employees had been done on a consistent basis with full
knowledge of upper management. Second, complainant alleged that she was
discriminated against when on January 22, 2003, she was informed that she
was being moved to the annex which was a 100,000 square foot building as
opposed to the 37,000 square foot building where she had been working.
Complainant stated that due to her physical and mental restrictions she
was not able to do the job at the annex. Complainant also stated that
no other employee was moved until May 2003. Complainant further alleged
that she was moved from the building to the annex in retaliation for her
Congressional inquiry. In the third claim she raised in her complaint,
complainant alleged that in an effort by management to discriminate
against her, she was required to bring Family Leave Act (FMLA) paperwork
for a job related injury.
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing. However, after the AJ issued her order scheduling
the hearing date, complainant withdrew her request for a hearing and
requested a final agency decision.
In its FAD, the agency concluded that management had articulated
legitimate, non-discriminatory reasons for its actions that complainant
failed to rebut. Specifically with regard to claim (1), the agency
found that complainant received a LOW because she allowed a craft
employee to use her computer password. The agency also found that the
agency's regulations clearly state that supervisors are not authorized
to provide another person with the ID logon, and if they do so, they
may be subject to disciplinary action and/or criminal prosecution.
The agency further found that to management's knowledge, no other
supervisor engaged in similar conduct and that complainant failed
to establish that she was treated differently than other similarly
situated employees under the same circumstances. Regarding claim (2),
the agency found that complainant was moved to the annex, as were as
other supervisors outside of complainant's protected groups. The agency
also found that the decision to move complainant and other supervisors
was to increase productivity and train other supervisors in other areas.
Regarding claim (3), the agency found that management sent complainant
the forms for FMLA as well as to other qualified employees.
On appeal, complainant raised the same arguments raised in her complaint.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD 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). The allocation of burdens and order of presentation of
proof in a Title VII case alleging disparate treatment discrimination is
a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
We note that in order to establish a prima facie case of disability
discrimination, complainant must establish that she is a qualified
individual with a disability.<1> See Sims v. United States Postal
Service, EEOC Petition No. 03A00033 (February 25, 2000); 29 C.F.R. �
1630.4 (prohibiting discrimination against qualified individuals with
disabilities). A �qualified� individual with a disability satisfies the
requisite skills and experiences for the job, and is capable of performing
the essential functions of the position with or without reasonable
accommodation. See 29 C.F.R. � 1630.2(m). To prove a prima facie case,
complainant also must show that the agency took adverse action against
her and must demonstrate that a casual relationship exists between the
agency's reasons for its actions, and complainant's disability. See Moore
v. Department of the Army, EEOC Request No. 05960093 (October 16, 19980).
The Commission assumes, without deciding, that complainant is a
qualified individual with a disability under the Rehabilitation Act.
Nonetheless, the Commission finds that complainant failed to establish
a prima facie case of disparate treatment disability discrimination.
Complainant refers to other employees who were not issued a LOW, were not
moved to the annex, and/or were not requested to submit FMLA documents;
however, the record does not show, that these employees were similarly
situated to complainant. Specifically, there is no indication that these
employees suffered the same limitations as complainant, worked in the
same type of position, or operated within the same chain-of-command.
Complainant presents no other evidence from which the Commission
reasonably could draw an inference of disability discrimination.
Complainant may establish a prima facie case of reprisal discrimination
by showing that: (1) she engaged in protected activity; (2) the agency
was aware of the protected activity; (3) subsequently, she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
We find that complainant established a prima facie case of retaliation
regarding claims (1) and (2). However, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the record reveals that complainant was issued a LOW for
failure to follow Postal Service policy. Specifically, the record reveals
that on December 20, 2002, complainant gave her login and password to a
craft employee. Complainant argued that while several other employees
used other manager passwords with management's knowledge she was the
only one to be disciplined. However, she failed to proffer probative
evidence which would show that in fact management knew about other
employees using manager passwords. The record contains no evidence
about other managers who allowed craft employees to use their passwords
without facing discipline.
Complainant argued that she was moved to the annex in retaliation
because Congressional inquires she had made. Specifically, complainant
argued that she was moved after a meeting with management regarding the
matters that were part of the Congressional inquiry. Complainant also
argued that at the end of the meeting management became very irritated,
and that the next day, she was informed that she would be moved to
the annex. Complainant further argued that she was the only one to be
moved immediately. Complainant alleged that the other employees were
moved months later. We find that even if it is true that the employees
were moved at a later date than complainant, the evidence of record
is insufficient to support a finding that the move was motivated by
discriminatory or retaliatory animus. In reaching this conclusion,
we find that the record also reveals that all supervisors, associate
supervisors, and acting supervisors were re-assigned at times between
the facilities. Furthermore, the record shows that complainant, along
with ten other employees, was relocated to another building. We conclude
that complainant did not establish that more likely not, the agency's
articulated reasons were a pretext to mask unlawful discrimination or
retaliation. We find that complainant did not present any persuasive
evidence, other that her opinion, to substantiate her claims.
Claim (3)
We find that the complaint fails to state a claim and that complainant
has failed to show that she was aggrieved. The Commission's federal
sector case precedent has long defined �an aggrieved employee� as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant
has failed to show how the receipt of a standard letter resulted in a
personal loss or harm to a term, condition or privilege of her employment.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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 16, 2005
__________________
Date
1 An individual with a disability is one who: (1) has a physical or
mental impairment that substantially limits one or more major life
activity; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. See 29 C.F.R. � 1630.2(g).