01973099
02-07-2000
Leslie M. Rowe, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Leslie M. Rowe v. United States Postal Service
01973099
February 7, 2000
Leslie M. Rowe, )
Complainant, )
)
v. ) Appeal No. 01973099
)
William J. Henderson, ) Agency No. 1K-221-1029-96
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), sex (female), physical disability (Epilepsy),
and reprisal (prior EEO activity), 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. �791, et seq.<1>
Complainant claims she was discriminated against when on April 13, 1996,
she received a Notice of Removal for "Improper Conduct/Falsification
of Records." This appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
The record reveals that during the relevant time, complainant
was employed as a Distribution Clerk, at the agency's facility in
Merrifield, Virginia. Complainant alleged that her supervisor ("AS")
(Black, female) was using the Removal as a means to discriminate against
her on the above-mentioned bases. AS stated after complainant's worker
compensation claim was denied in January 1996, she informed complainant
that she would have to return to her normal duties. On January 18,
1996, complainant informed AS that her physician had restricted her from
performing manual letter operations. AS stated that she then requested
complainant to provide her with documentation of her medical restrictions.
On January 26, 1996, complainant provided AS with a copy of a CA-17
limited duty status form dated July 5, 1995, which stated the following:
(1) she should not drive or operate heavy machinery; (2) she should avoid
undue stress and long work hours; (3) she should limit lifting/carrying
(0 to 10 pounds) to four hours per day; (4) she should limit sitting to
eight hours per day; and (5) she should limit reaching above shoulders
to two hours per day. The CA-17 form also stated that complainant's
next appointment was scheduled in ten months. AS stated that based
on the medical restrictions she assigned complainant to work in the
manual letter operation. After complainant stated that she believed
that her assignment was outside of her medical restrictions, AS went to
the medical unit to verify her duty status. The medical unit informed
AS that the CA-17 form dated July 5, 1995, was the only information on
file about complainant's medical restrictions. When AS looked over
the medical unit's copy of the CA-17 form, she noticed that the form
was identical to the one complainant submitted to her on January 26,
1996, but it did not include the reaching restriction and indicated that
complainant's next scheduled visit was for six weeks. Upon learning
of the discrepancies, AS contacted complainant's physician who stated
that she had not placed any lifting, sitting or reaching restrictions on
complainant's CA-17 form dated July 5, 1995. On February 8, 1996, AS gave
complainant a pre-disciplinary interview regarding possible falsification
of records. After complainant was given several opportunities to explain
the discrepancies, AS issued the Notice of Removal on April 13, 1996.
Believing she was a victim of discrimination, complainant sought
EEO counseling and, subsequently, filed a complaint on June 13, 1996.
The agency accepted the complaint for processing, and at the conclusion
of the investigation, complainant was granted thirty days to request
a hearing before an EEOC Administrative Judge. Complainant failed to
request a hearing within the thirty day time period. Thereafter, the
agency issued a FAD finding no discrimination.
The FAD concluded that complainant failed to establish race or sex
discrimination because the record lacked evidence demonstrating that AS,
a Black female, considered these factors in issuing the Notice of Removal.
The FAD next concluded that complainant failed to establish discrimination
based on disability because she did not make a plausible showing that
there was a causal nexus between her disability and the Notice of Removal.
Last, the FAD concluded that because complainant did not establish a
nexus between her prior EEO activity and the Notice of Removal, she
failed to establish that she was subjected to reprisal.
On appeal, complainant contends that the FAD erred in not finding that
the Notice of Removal was a pretext to justify the agency's unlawful
discrimination and retaliation. The agency requests that we affirm
its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Prewitt v. United States Postal Service, 662 F.2d
292 (5th Cir. 1981), and Hochstadt v. Worcester Found. for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission finds that complainant failed to present sufficient credible
evidence demonstrating that the agency's decision to issue the Notice
of Removal was motivated by unlawful discrimination or retaliation.
While the Commission makes no finding regarding complainant's alleged
misconduct, we find the alleged misconduct appears to be the only
motive behind the agency's decision to issue the Notice of Removal.
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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 7, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
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.