01981595
02-21-2001
Mary L. Feaver, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area), Agency.
Mary L. Feaver v. United States Postal Service
01981595
February 21, 2001
.
Mary L. Feaver,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny Area),
Agency.
Appeal No. 01981595
Agency No. 1C-431-1065-96
Hearing Nos. 220-97-5170X; 220-97-5171X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.<2> Complainant alleges she was discriminated
against on the basis of: (1) disability (bilateral carpal tunnel syndrome)
when the agency offered her a Part-Time Flexible (PTF) Clerk position on
March 30, 1996; and (2) in reprisal for prior protected activity arising
under Title VII and the Rehabilitation Act when the agency changed
her scheduled off days on May 11, 1996. For the following reasons,
the Commission affirms the agency's final decision.
The record reveals that complainant, a PTF Clerk at the agency's Main
Post Office in Columbus, Ohio, filed a formal EEO complaint alleging
that the agency had discriminated against her as referenced above.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge. The Administrative Judge issued a decision without a hearing,
finding no discrimination. The agency's final decision implemented the
Administrative Judge's decision, and complainant now appeals, restating
arguments previously made during the investigation. The agency did not
respond.
Complainant, who was an employee of an agency facility in Marion,
Ohio, was working in a temporary limited duty assignment at the Main
Post Office in Columbus, Ohio when in October 1995 her job status in
Marion as a PTF Clerk was changed to a Distribution Clerk, Regular.
Subsequently, in March 1996, the Columbus facility offered complainant
a permanent limited duty position as a PTF Clerk which she accepted.
Complainant contends that the agency should have offered her a permanent
limited duty position as a Distribution Clerk, Regular since that was her
job status at the time of the offer and that the offer was motivated
by discriminatory animus towards her disability since had she not
been disabled, the agency would not have made the offer. She further
contends that there was no need to change her scheduled off days since
she had been working the same schedule for three years and that the days
were changed in temporal proximity to her filing of an EEO complaint on
another issue relating to the instant job offer.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981), and assuming without concluding that complainant
was a qualified individual with a disability within the meaning of
the Rehabilitation Act, we find that complainant failed to produce any
evidence from which it could be inferred that the agency's articulated
legitimate, non-discriminatory reason for offering the PTF Clerk position
was a pretext for disability discrimination. In reaching this conclusion,
we note that the agency's explanation for its offer was that it had to
comply with applicable collective bargaining union agreements. We also
note that the agency initially offered complainant the Distribution Clerk,
Regular position but retracted the offer when the union became involved.
Complainant has not presented any evidence which, even if credited,
could establish that individuals without disabilities were treated more
favorably or that it was her disability, and not compliance with the
union, which motivated the agency's action.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976), we find that complainant failed to establish a prima
facie case of retaliation since the manager responsible for changing
complainant's off days denied knowledge of complainant's prior EEO
activity, and complainant gave no basis for her assumption that the
manager, who was not named in the prior EEO activity, would have known
that she filed a complaint.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we discern no basis to disturb the
Administrative Judge's finding of no discrimination, and we affirm the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 21, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 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.
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.