Linda K. Wilson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 9, 2009
0120092773 (E.E.O.C. Nov. 9, 2009)

0120092773

11-09-2009

Linda K. Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Linda K. Wilson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092773

Agency No. 4G-760-0057-08

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's May 7, 2009 final decision concerning an equal

employment opportunity (EEO) complaint claiming 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.

On April 22, 2008, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against her

on the bases of disability (back injury and depression/anxiety) and in

reprisal for prior protected activity when:

as of January 15, 2008, the donated leave form she turned in on November

23, 2007 has not been processed.

At the conclusion of investigation, complainant was provided with a copy

of the report of the investigation and notice of her right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. However, complainant subsequently withdrew her

request. Consequently, the agency issued a final decision pursuant to

29 C.F.R. � 1614.110(b).

In its May 7, 2009 final decision, the agency found that complainant

did not establish a prima facie case of disability and reprisal

discrimination.1 The agency further found that assuming, arguendo, that

complainant established a prima facie case of disability and reprisal

discrimination, management articulated legitimate, nondiscriminatory

reasons for complainant's non-selections which complainant failed to

show were a pretext for discrimination.

The Station Manager (SM) stated that in regard to complainant's allegation

that her donated leave form she turned in on November 23, 2007 had not

been processed "I cannot verify whether this is true or not because

I am not involved in this situation as management official. She did

not give me any donated leave forms to process on her behalf and she

would not have given them to me because I am not her direct supervisor.

Employees are to give these requests to their direct supervisor and I

am not her direct supervisor." SM further stated that "the management

instructions pertaining to the annual leave sharing program, the EL 510,

states the employee must request leave by submitting a PS Form 3974-R,

Request to Receive Leave, to [his or her] immediate supervisor. As I

stated before, I am not her supervisor and she would not have submitted

her forms to me."

With respect to complainant's argument that she asked SM three different

times about the donated leave form and SM replied that she had submitted

the forms, SM stated "I don't recall any conversation with [complainant]

regarding her donated leave forms."

The Supervisor Customer Services (SCS) stated "I was one of many

supervisors who gave [complainant] direct supervision. I currently

continue to supervise [complainant]." SCSC further stated that she

had no knowledge of complainant's allegation concerning the donated

leave form.

The Acting Manager (AM) stated that during the relevant time, he did

not have a direct working relationship with complainant. Specifically,

AM stated that he was off from work on or around December 20, 2007 and

did not return to work until January 15, 2008. AM further stated that

as of September/October 2007, he no longer supervised complainant and

had no information concerning her allegations.

On appeal, complainant, through her attorney, argues that the agency erred

in finding no discrimination. Specifically, complainant argues that the

agency attorneys "may try to explain what motivated the decision-maker

in this case but their attempts are doomed to failure. The actor must

give an individualized, legitimate, non-discriminatory reason to rebut

our client's allegations. This cannot be done with [SM], [SCS], and

[AM] each saying that they did not accept the donated leave request and

then fail to submit it for processing."

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

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. See

McDonnell Douglas, 411 U.S. at 802; 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. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, we find that after a careful review of the record,

the agency articulated legitimate, nondiscriminatory reasons for its

actions. Complainant has not demonstrated that these reasons were a

pretext for discrimination.

Complainant, on appeal, has provided no persuasive arguments indicating

any improprieties in the agency's findings. Therefore, after a review of

the record in its entirety, including consideration of all statements on

appeal, 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

November 9, 2009

__________________

Date

1 For purposes of analysis only, and without so finding, the Commission

presumes that complainant is an individual with a disability within the

meaning of the Rehabilitation Act.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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