Mary Cavanaugh, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 11, 2009
0120091389 (E.E.O.C. Aug. 11, 2009)

0120091389

08-11-2009

Mary Cavanaugh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mary Cavanaugh,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091389

Hearing No. 450-2007-00399X

Agency No. 4G752017307

DECISION

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

appeal from the agency's January 12, 2009 final order concerning her

equal employment opportunity (EEO) complaint alleging employment

discrimination in violation of Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

Complainant alleged that the agency discriminated against her on the basis

of reprisal for prior protected EEO activity under the Rehabilitation

Act when on December 12th and 19th, 2006, she was denied reasonable

accommodation.

The record reveals that while complainant was Postmaster of Waxahachie,

Texas, she was threatened by a Postal Service employee, who was

disciplined for his actions and subsequently removed from the Postal

Service. However, because complainant remained afraid of this particular

employee, she requested sick leave on September 30, 2005, and did not

return to the Waxahachie Postmaster position. Complainant testified

that she was in fear for her life, afraid to

go out by herself, and afraid that this disgruntled employee would find

her. In an October 17, 2005 letter, complainant's physician stated,

"Mary has been diagnosed with Major Depressive Disorder, recurrent,

Generalized Anxiety Disorder and Panic Disorder." He further stated

that complainant's symptoms rendered her "unable to work at this time..."

On December 5, 2005, a psychologist conducted a psychological evaluation

of complainant and found that she was not able to return to work at that

time. In April 2006, both complainant's physician and psychologist stated

that complainant needed to be transferred out of the state of Texas.

In April 2006, complainant met with the agency's District Manager, Human

Resources Generalist, Manager of Injury Compensation, and her immediate

supervisor. Complainant expressed concerns about the disgruntled employee

and asked for another assignment. Complainant was then referred to the

Dallas District Reasonable Accommodation Committee (DRAC).

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

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

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

a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).

On November 28, 2008, the Administrative Judge (AJ) issued a decision

finding no discrimination after a hearing. In reaching this decision,

the AJ determined that even if complainant could establish a prima facie

case, the agency had articulated legitimate, nondiscriminatory reasons

for not being able to provide complainant a reasonable accommodation.

The AJ stated that complainant was unable to work at any job that the

DRAC could find that would not violate the medical documentation she

had provided to them up to the date of the events in December, 2006.

The AJ further stated that complainant was also not able to identify any

vacant funded position to help in the interactive process in which the

agency clearly engaged. The AJ concluded that even if complainant had not

filed an EEO claim in the past, the agency could not have accommodated

her while she remained "continuously disabled and unable to work."

Even if complainant had not filed an EEO claim in the past, the agency

did not have a vacant funded position for complainant that would have

been sufficiently "safe" and "low key" to meet her requirements.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She

must generally establish a prima facie case by demonstrating that

she 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 in this case, however, since 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); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Complainant submits no statement on appeal. Complainant has not

produced evidence to show that the agency's explanations are a pretext

for discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the final agency order because

the Administrative Judge's ultimate finding, that unlawful employment

discrimination was not proven by a preponderance of the evidence, is

supported by the record.

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

August 11, 2009

__________________

Date

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0120091389

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091389