01975315
01-21-2000
Karen K. Byars, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Karen K. Byars v. United States Postal Service
01975315
January 21, 2000
Karen K. Byars, )
Complainant, )
) Appeal No. 01975315
v. ) Agency No. 1C-451-1112-96
) Hearing No. 220-97-5010X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_______________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �701 et seq.<1> Complainant's claim of discrimination is
based upon her race (black), sex (female) and disability (carpal tunnel
syndrome) when, on February 17, 1996, she was forced into a permanent
position, which changed her tour of duty from 6:00 a.m. to 2:30 p.m. with
Saturday/Sunday off days, to 4:30 p.m. to 1:00 a.m. with Sunday/Monday off
days. The appeal is accepted in accordance with EEOC Order No. 960.001.
On May 8, 1996, complainant filed a formal complaint claiming
discrimination as referenced above. Complainant's complaint was accepted
for processing. Following an investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On March 3, 1997,
a hearing took place before an AJ. Thereafter, on April 3, 1997,
the AJ rendered his recommended decision finding no discrimination.
The agency subsequently adopted the AJ's recommended decision. It is
this agency decision which complainant now appeals.
Complainant is an Automation Clerk in the agency's Dayton, Ohio Processing
and Distribution Center. In addition, complainant is the Chief Steward
for the union on tour two (6:00 a.m. to 2:30 p.m. shift). Complainant
had carpal tunnel surgery in March, 1994 on her right hand and in May,
1995, on her left hand. On September 26, 1995, a Fitness for Duty
Examination for complainant was requested and scheduled for September
29, 1995. Prior to the Fitness for Duty Examination, complainant
had not worked her bid job since her first surgery in March, 1994.
Prior to her surgeries, complainant worked on tour two (6:00 a.m. to
2:30 p.m. with Saturday/Sunday off days). When complainant reported
back to work sometime in late September, or early October, 1995, her
supervisor discussed, at least, two jobs with her: (1) throwing bundles
and breaking down SEF Bundles on the belt; and (2) working manual primary.
Complainant testified that she told her supervisor that she could not
perform those jobs.
On February 14, 1996, complainant was offered a permanent rehabilitation
job for the position of Modified Clerk, 5L with the hours of 4:30 p.m. to
1:00 a.m. On February 23, 1996, complainant rejected the job offer
because she was opposed to the work schedule. The Office of Worker's
Compensation Programs (OWCP) found the offered position to be suitable
to her work capabilities. Accordingly, OWCP informed complainant that
if she failed to accept the offered position, her compensation would be
terminated. On March 12, 1996, complainant accepted the job offer.
The AJ found that complainant failed to establish a prima facie
case of race, sex and disability discrimination because complainant
failed to identify similarly situated coworkers outside complainant's
protected classes who were treated more favorably than she under similar
circumstances. Specifically, the AJ found that none of the identified
comparatives refused worked offered to them by the agency on the basis
of their medical restriction. In addition, none of the comparatives
were offered permanent jobs.
The AJ also found that, assuming disability was established, a reasonable
accommodation was provided since, as complainant testified, the job
offer was a suitable one for her restrictions and was approved by OWCP.
Lastly, the AJ did not find evidence of discriminatory animus based upon
race, sex or disability. Specifically, the AJ noted that complainant
testified that the "real" or "sole" reason for her being offered the
Modified Clerk position on tour three was either to prohibit her from
performing her duties as Chief Steward on tour two, or retaliation for her
prior union activities. Instead of presenting any evidence of bias based
upon race, sex, or disability, complainant's entire testimony centered
around an allegation of reprisal discrimination. Reprisal discrimination
was not alleged by complainant in her complaint. Accordingly, the AJ
found that complainant failed to prove discrimination as alleged.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that, in all material respects, the AJ accurately set forth the relevant
facts and properly analyzed the case using the appropriate regulations,
policies, and laws.<2> On appeal, complainant argues that, contrary
to the AJ's determination, she never testified that the job offer was a
suitable one for her restrictions. Assuming complainant never testified
accordingly, we nevertheless find that complainant fails to dispute the
fact that she was able to perform the duties of the offered position.
The record clearly indicates that the sole reason complainant found the
offered position unacceptable was because of its scheduled hours rather
than the failure of the agency to accommodate her alleged disability.
Complainant also argues that she did not make reprisal an issue in
this matter. We disagree and find that complainant clearly testified
that she believed that the sole reason for the job offer was reprisal
for her union activities. See Hearing Transcript pp. 120-121.
Lastly, complainant argues that the comparative evidence sufficiently
establishes discrimination. We disagree. Complainant cites four
white females, one black female and one black male with allegedly
permanent injuries who were not required to except a permanent job
offer during a different tour. Assuming complainant has established
that she is disabled, or regarded as disabled, within the meaning of the
Rehabilitation Act, we find that she has not shown that these individuals
fall outside her protected class. With respect to complainant's
sex discrimination claim, while one individual outside complainant's
protected class was arguably treated more favorably than complainant,
there were at least five other individuals, within complainant's protected
class, who were treated more favorably than complainant. We find that
this evidence, without more, fails to prove sex discrimination. We,
likewise, fail to find race discrimination solely on the allegation
that four white employees were treated more favorably, when two black
employees were also treated more favorably than complainant. Moreover,
we note that complainant fails to argue that the comparison employees
refused to perform work requested by management. Accordingly, they are
not similarly situated to complainant who testified that she refused to
perform, at least, two different requests by management.
In addition to the arguments addressed above, nothing asserted by
complainant on appeal differs significantly from arguments previously
raised and given full consideration by the AJ. Accordingly, we discern
no basis upon which to disturb the AJ's finding of no discrimination
and hereby AFFIRM the agency's final decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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:
1/21/00
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999) where applicable, in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at WWW.EEOC.GOV.
2 Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
administrative judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent did
or did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).