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
2
0120091389
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091389