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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0120092773
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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