01976962
02-10-2000
Maria Culp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.
Maria Culp, )
Complainant, )
) Appeal No. 01976962
v. ) Agency No. 4-G-770-1252-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western 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 (White), age (44), physical disability (hearing loss)
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.; the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq.; and the Rehabilitation Act of 1973,<1> as amended,
29 U.S.C. �791, et seq.<2> Complainant alleges she was discriminated
against when beginning on February 20, 1996, she was denied the
opportunity to work overtime. The 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 PS-5 Distribution Clerk at the agency's Oak Forest Station,
Houston, Texas. Complainant alleged that starting on February 20,
1996, she requested the opportunity to work overtime as a Window Clerk,
particularly on her non-scheduled days, but was denied. She asserts
that two other employees (White, not disabled) were allowed to work
overtime while her requests were denied. Believing she was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint on May 9, 1996. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge,
or request a final decision by the agency. After failing to respond
within the appropriate time frame, the agency issued its FAD.
The FAD found that complainant failed to establish a prima facie case
of race or age discrimination because she presented no evidence that
similarly situated employees not in her protected classes were treated
differently under similar circumstances. The FAD further found that
complainant failed to demonstrate a prima facie case of disability
discrimination as she is not a �qualified individual with a disability�
who could perform the essential functions of the Window Clerk position.
Finally, the FAD found that complainant failed to establish a prima
facie case of retaliation, as she did not prove a causal connection
between her EEO activities and not being called in for overtime duty.
Complainant has made no contentions on appeal, while 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), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); and
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
and Hochstadt v. Worcester Foundation 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), we agree with the FAD
that complainant failed to establish a prima facie case of race or age
discrimination, as there were no similarly situated Distribution Clerks
not in complainant's protected groups who were treated differently.
Moreover, the fact that a Caucasian employee and an employee the same
age as complainant worked more hours of overtime negates an inference
of discriminatory animus.
In addition, we agree with the FAD that complainant has failed to
establish a prima facie case of disability discrimination. Complainant
was qualified to perform the duties of a Distribution Clerk, but failed
to demonstrate that she was qualified to perform the essential functions
of a Window Clerk. In addition, the agency was required by its collective
bargaining agreement to provide overtime �among qualified employees doing
similar work...where the employees regularly work� and thus complainant
was prohibited from being granted overtime as a Window Clerk as that
was not her usual job. In addition, the fact that complainant was
allowed to work 31.47 hours of overtime between December 23, 1995,
and March 29, 1996, negates a finding that the agency categorically
denied overtime to persons with disabilities. Finally, we agree with
the FAD's finding that complainant failed to establish a prima facie case
of retaliation, as she has failed to meet her burden in demonstrating a
causal connection between her protected activity and the agency's failure
to allow complainant to work as many hours of overtime as she requested.
Therefore, after a careful review of the record and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED.
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).
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 the 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 the 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 the 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:
February 10, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment. Since that time, the ADA regulations set out at 29
C.F.R. Part 1630 apply to complaints of disability discrimination.
These regulations can be found on EEOC's website at WWW.EEOC.GOV.
2 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.