Karen K. Byars, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01975315 (E.E.O.C. Jan. 21, 2000)

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).