01972163
05-14-1999
Mable L. Carnahan Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.
Mable L. Carnahan v. United States Postal Service
01972163
May 14, 1999
Mable L. Carnahan )
Appellant, )
)
v. ) Appeal No. 01972163
) Agency No. 5D-1945-92
William J. Henderson, ) Hearing No. 340-95-3394X
Postmaster General, )
United States Postal Service )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint alleging that the agency
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against her on the bases of race (Black), sex (female), reprisal (prior
EEO complaints), and/or because of her physical disability (asthma,
sinusitis, and congestive heart failure) when: (1) her step increases were
deferred in or about 1992; and (2) the agency failed to properly process
her claim for disability retirement which resulted in the Office of
Personnel Management's (OPM) initial denial of her application on April 9,
1992.<1> Following a successful appeal to this Commission<2>, appellant's
case was remanded for a hearing with an EEOC administrative judge (AJ).
Thereafter, the AJ issued a recommended decision without a hearing,
pursuant to 29 C.F.R. �1614.109 (e) (3), finding no discrimination.
The agency subsequently adopted the AJ's recommended decision in a final
agency decision (FAD) dated December 12, 1996.
In her recommended decision, the AJ found that appellant failed to
establish a prima facie case of disparate treatment, on the bases of her
race and sex with regard to either issue. The AJ further concluded that
appellant did not make a prima facie showing of reprisal discrimination
with regard to her disability retirement issue because the AJ noted
that with the exception of appellant's current supervisor, no one
involved in processing appellant's disability retirement claim was
aware of appellant's previous EEO activity. Furthermore, the AJ found
no evidence that appellant's supervisor's opinions regarding appellant's
physical disability were controlling or had any effect on OPM's initial
decision to deny appellant's disability retirement claim. Although the
AJ noted that the supervisor's description of appellant's abilities on the
statement accompanying appellant's disability application were inaccurate
and based on outdated information and documents, she ultimately found
that the evidence of record did not suggest that appellant's supervisor's
comments were in any way motivated by appellant's previous EEO activity.
Regarding appellant's step increases, the AJ found that appellant failed
to establish a prima facie case of reprisal discrimination because
appellant's step increases were deferred automatically based solely upon
the amount of time appellant had been on leave without pay (LWOP)by
the agency's payroll division. Finally, the AJ held that appellant
failed to establish a prima facie case of disability discrimination
because appellant was not a qualified individual with a disability.
Specifically, the AJ found that during the relevant time, appellant was
never capable of performing the essential functions of her position as
a postal clerk with or without accommodations.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); Wrenn v. Gould, 808 F.2d 493,
500 (D.C. Cir. 1987) (applying the McDonnell Douglas standard to reprisal
cases); and Oberg v. Secretary of the Navy, EEOC Request No. 05890451
(July 20, 1989)(applying the McDonnell Douglas standard to disability
discrimination based on disparate treatment). The Commission concludes
that, in all material respects, the AJ accurately set forth the facts
giving rise to the complaint and the law applicable to the case. First,
regarding appellant's step increase, we find that the agency rebutted
any prima facie case appellant may have established by explaining that
appellant was denied step increases in accordance with agency policy
because she had been in a LWOP status for more than 13 weeks during the
waiting period for receipt of a periodic step increase. We further find
that the AJ correctly determined that appellant failed to establish a
prima facie case on the bases of her race and sex. Also, although we
find contrary to the AJ's decision that appellant established a prima
facie case of reprisal discrimination, with regard to how her disability
retirement application was processed,<3> the record clearly shows that
appellant's disability retirement application was delayed by the first
Medical Officer's failure to process the application. Once appellant's
medical file was reassigned to another Medical Officer, her file was
properly processed. Moreover, the record shows that appellant's medical
review was not the only one delayed by the first Medical Officer but all
medical files assigned to the officer for review were delayed due to the
Officer's medical leave. Therefore, any prima facie case appellant may
have established would be rebutted by this evidence. Finally, we find
that the AJ correctly determined that appellant was not a qualified
person with a disability. We acknowledge appellant's statement in
support of her appeal, however, we find no persuasive evidence which
would support a finding of discrimination. In light of this finding,
we adopt the AJ's decision as our own. Accordingly, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the final agency
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction in
which your action would be filed. 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 (Z1092)
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:
May 14, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 Appellant appealed OPM's April 9, 1992 decision. Appellant's
disability retirement was subsequently approved after on August 7, 1992,
retroactive to September 29, 1990.
2The Commission reversed the final agency decision that dismissed
appellant's complaint as moot.
3Appellant established a prima facie case of discrimination only with
regard to her supervisor's adverse comments submitted with her retirement
application.