0120091000
03-19-2009
Karen R. Penrice, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karen R. Penrice,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091000
Agency No. 4G770044607
Hearing No. 460200800117X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order concerning her equal employment
opportunity (EEO) complaint alleging 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.
Complainant alleged that the agency discriminated against her on the
bases of disability (bilateral knees) and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when a supervisor
walked past her and stated she should quit already, and subsequently
she was not paid properly; and, on September 13, 2007, she was fired.
The agency investigated the complaint, and thereafter complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
entered a decision by summary judgment concluding the evidence did not
establish discrimination had occurred. The agency issued its final
order adopting the AJ's decision. The instant appeal followed.
Briefly, the AJ found that complainant was a Casual Carrier who sustained
a work-related injury in May 2006 while employed by the agency. As
a result, she had a bilateral knee impairment resulting in medical
restrictions, including no standing or walking for more than four hours.
In July 2007, complainant signed a settlement agreement following an
EEO medication which stated she would be assigned to a unit that could
accommodate her medical restrictions, and which indicated that the term
of her casual craft position would terminate on September 19, 2007. As
a result of the agreement, complainant was transferred to the Westfield
Station, which had no walking routes, only "mounted" routes.
After complainant transferred to Westfield, she received a pay shortage
due to a problem with the downloading of clock ring information
into the payroll system. She brought the matter to management's
attention. Complainant asserted that her supervisor walked past her and
told her to quit. The supervisor denied making any such statement.
After complaining about her pay, complainant was given an advance of
60% of her salary, with the balance later remitted. On September 12,
2007, complainant informed the secretary to the Postmaster of her pay
shortage, who verified that complainant had received the 60% advance.
Nevertheless, complainant told the secretary that she was quitting her
job and wanted to end her assignment effective September 12, 2007.
The AJ concluded that complainant failed to establish, by a preponderance
of the evidence, that she was subjected to discrimination or retaliation.
The AJ found that complainant failed to support her assertion that
she was told to quit, and further found that her payroll problems
were immediately addressed. In addition, the AJ found the evidence
indicated that complainant asked to quit a week early and was not
fired. The AJ found no evidence to support complainant's claims. The
Commission concurs with the AJ, finding that even assuming complainant
can establish a prima facie case of discrimination or reprisal, she
did not show that the agency's proffered reasons for its actions were
a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the AJ's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence 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
March 19, 2009
__________________
Date
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0120091000
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091000