0120071789
05-01-2009
Marilyn Jordan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071789
Agency No. 4J-604-0040-05
DECISION
Complainant filed an appeal with this Commission from the January 9, 2007
agency decision finding no discrimination with regard to her complaint
of unlawful 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Black), sex (female), and disability
(hyperthyroidism) when on November 4, 2004, she received an official
decision removing her from the agency for unacceptable conduct, as
evidenced by a submission of a false document to secure approved leave.
Complainant did not request a hearing before an EEOC Administrative
Judge.
In its decision finding no discrimination, the agency concluded that
complainant failed to establish a prima facie case on any basis, noting
that complainant failed to show that she was treated less favorably than
similarly situated employees not in her protected groups. The agency
noted that none of the comparatives that complainant identified had
engaged in the same conduct, i.e., falsifying medical documentation.
The agency concluded further that even if complainant had established
a prima facie case, the agency had articulated a legitimate,
nondiscriminatory reason for removing complainant, i.e., falsifying
medical documentation. The agency noted that on September 1, 2004,
complainant informed the Postmaster that she was feeling tired and was
going home. The agency noted further that the Postmaster requested
that complainant submit medical documentation to support her absence.
On September 3, 2004, complainant provided an unsigned physician's note,
dated September 1, 2004. The physician's note indicated that complainant
was incapacitated on September 1, 2004. The agency noted that because
a physician's signature was missing on the note, the Postmaster called
the physician's office to verify that complainant was seen. The agency
noted further that the physician's office informed the Postmaster that
the office was closed on September 1, 2004. The agency noted that when
the Postmaster asked complainant had she been seen on September 1, 2004,
she replied that she had. The agency noted that complainant later stated
that she was seen by a nurse but the physician's office confirmed that
the office was not open on September 1, 2004.
The record contains a copy of the physician's note and a note from
the physician's office which indicates that complainant was not seen
on September 1, 2004. The record also contains a copy of � 661.53 of
the Employee Labor and Relations Manual which provides that no employee
will engage in criminal, dishonest, notoriously disgraceful, or immoral
conduct, or any other conduct prejudicial to the agency. The record
also contains a copy of complainant's Notice of Removal which indicates
that complainant was discharged for unacceptable conduct by submitting
a false document to obtain approved leave.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may
be dispensed with where the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. �1614.110(b), the agency's decision is subject to
a de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission concludes that the agency did not
discriminate against complainant. The agency has articulated
a legitimate, nondiscriminatory reason for removing complainant.
Complainant has failed to show by a preponderance of the evidence that
the agency's reason was mere pretext to hide unlawful discrimination or
that the agency was motivated by discriminatory animus in removing her.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden. We do not address in this
decision whether complainant is an individual with a disability.
The agency's finding of no discrimination is AFFIRMED.
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
May 1, 2009
__________________
Date
2
0120071789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120071789