0120081301
09-17-2009
Karen L. Huston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karen L. Huston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081301
Agency No. 4C-440-0147-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 17, 2007 final decision concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. 1
Complainant worked as a Mail Processing Clerk at the Poland Station
in Poland, Ohio. Complainant filed a formal EEO complaint in which
she alleged that the agency discriminated against her on the basis of
disability (stress, anxiety) when: (a) on March 12, 2007, her manager
withheld three paychecks; (b) on March 26, 2007, she was advised that
her medical documents were not acceptable to the agency; (c) her leave
was entered improperly as 20 hours sick leave and 60 hours leave without
pay (LWOP), rather than 40 hours of each as she had requested; and (d)
on unspecified dates, the agency assessed her sick leave or LWOP, but she
had not requested the leave.2 Following an investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge (AJ), but she did not respond to the agency's notice. The agency
issued a final agency decision (FAD), finding no discrimination.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). For purposes of further analysis, we assume, arguendo, without
so finding, that complainant is an individual with a disability entitled
to coverage under the Rehabilitation Act.
In general, disparate treatment claims are examined under a tripartite
analysis whereby a complainant 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 Corp. v. Green, 411 U.S. 792, 802-804 (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 burden reverts back to
the complainant to 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 his/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). For purposes of further analysis, we
assume, arguendo, without so finding, that complainant established a
prima facie case of discrimination based on disability.
The agency explained its actions as follows: As to claim (a), although
complainant had asked her former manager to mail paychecks to her home,
her present manager (S1), who became her supervisor in January 2007
while complainant was on leave, was unaware of the request and placed the
checks in the safe, but S1 mailed them to her after complainant called.
Regarding claim (b), complainant's medical information was limited to
a statement that she was unable to work, and the agency required her to
provide documentation pursuant to agency regulations, e.g., to explain
the nature of the illness. As to claim (c), S1 input the wrong number
of hours assigned to sick leave and LWOP, which was eventually corrected
after complainant submitted all documentation. Finally, regarding claim
(d), when the Office of Workers Compensation Programs, Department of
Labor (OWCP), denied complainant's claim, her continuation of pay (COP)
was changed to sick leave. We find the foregoing sufficient to meet
the agency's burden of explanation.
The burden of persuasion now returns to the complainant to demonstrate by
preponderant evidence that the reasons given by the agency for its actions
were pretext, that is, a sham or disguise for discrimination. In other
words, complainant must show that the agency's actions more likely than
not were influenced by legally impermissible criteria, i.e., disability.
Other than her bare assertions, complainant has not provided probative
evidence to demonstrate pretext. We find that complainant has not refuted
the agency's reason for its actions nor otherwise demonstrated that the
agency's reasons were based on illegal considerations of disability.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, 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
September 17, 2009
Date
1 Complainant did not submit a statement in support of her appeal.
2 Complainant was absent from work November 2006 through March 2007.
The cause of her absence was the subject of a workers' compensation
claim.
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0120081301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081301