Milinda Spranger, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01974565 (E.E.O.C. Mar. 20, 2000)

01974565

03-20-2000

Milinda Spranger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Milinda Spranger v. United States Postal Service

01974565

March 20, 2000

Milinda Spranger, )

Complainant, )

) Appeal No. 01974565

v. ) Agency No. 1F-957-1046-96

)

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 sex (female), reprisal (prior EEO activity), and mental

disability (work related stress), in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>

Complainant alleges she was discriminated against when, in March 1996,

the agency denied her request for 240 hours of advanced sick leave.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the Commission affirms the FAD's finding of

no discrimination.<2>

The record reveals that during the relevant time, complainant was employed

as a PS-06 LSM Clerk at the agency's Processing and Distribution Center

in West Sacramento, California. Complainant stated that she was unable to

work because of her mental disability, and, as a reasonable accommodation,

she requested 240 hours of advanced sick leave "to help bridge the

financial gap until OWCP made a decision on her disability claim."

The agency denied her request stating that "since you have, within the

last six months, just returned to work after a work related absence,"

there is no guarantee that the agency can recoup the advancement.

Believing the agency denied her a reasonable accommodation and treated

her less favorably than other individuals, complainant sought EEO

counseling and subsequently filed a formal complaint on June 22, 1996.

At the conclusion of the investigation, when complainant failed to timely

request a hearing before an EEOC Administrative Judge, the agency issued a

final decision from which complainant now appeals. On appeal, complainant

presents no new evidence but reiterates her claims of discrimination.

The agency requests that we affirm its final decision.

Reasonable Accommodation Discrimination under the Rehabilitation Act

Federal agencies are required to provide reasonable accommodation to

qualified individuals with disabilities who are employees or applicants

for employment unless to do so would cause undue hardship.<3> 29 C.F.R. �

1630.9(a). An employee is a qualified individual with a disability if the

employee has a disability which substantially limits one or more major

life activities but who can, with or without reasonable accommodation,

perform the essential functions of the position in question or the

essential functions of any position which she could have held as a

result of job restructuring or reassignment. 29 C.F.R. � 1630.2;

Hawkins v. United States Postal Service, EEOC Petition No. 03990006

(February 11, 1999). The record contains no medical documentation of

complainant's disability. However, the Commission takes judicial notice

of its decision in Stander v. United States Postal Service, EEOC Appeal

No. 01930152 (February 17, 1994) wherein we found that complainant,

who suffered from major depression and dysthmia, was covered under the

Rehabilitation Act.<4> Accordingly, for purposes of this analysis, we

will assume that complainant is a qualified individual with a disability.

29 C.F.R. � 1630.2(m).

In the instant case, complainant contends that she cannot work due to

her stress and as a reasonable accommodation, requests advanced sick

leave. A reasonable accommodation enables an individual employee with a

disability to perform the essential functions of a position or to enjoy

equal benefits and privileges of employment as are enjoyed by employees

without disabilities. 29 C.F.R. � 1630.2(o). Complainant wanted

the advanced sick leave only to ensure that she would be financially

compensated while she waited for OWCP's decision on her disability claim.

While leave without pay may be a reasonable accommodation when the

leave is requested for treatment of the disability at issue, see Gore

v. Department of Health and Human Services, EEOC Appeal No. 01931927

(May 5, 1994), in the instant case, the advanced sick leave was not

requested for the purpose obtaining treatment. We thus conclude that

complainant's request for advanced sick leave was not a request for a

reasonable accommodation and that the agency's denial of her request was

not an act of discrimination within the meaning of the Rehabilitation Act.

Disparate Treatment Discrimination under Title VII and the Rehabilitation

Act

Based on 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 (D. Mass. 1976), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the

Commission finds that complainant failed to establish a prima facie case

of sex discrimination or retaliation. Regarding sex discrimination,

although complainant names a male employee who was advanced sick leave,

there is no evidence that he requested advanced leave for the same reason

complainant did, and thus we find that he was not similarly situated

to complainant. Regarding retaliation, we note that the supervisor who

denied the advanced sick leave was aware of complainant's prior protected

activity, and complainant asserts that management was vindictive because

of her success in a prior EEO claim. However, we find no evidence that

supports her assertion or that establishes either a temporal or causal

link between her prior protected activity which occurred in the early

1990s and the denial of her request for advanced leave. See Devereux

v. United States Postal Service, EEOC Request No. 05960869 (April 24,

1997).

The Commission also finds that complainant failed to establish a prima

facie case of disability discrimination under the theory of disparate

treatment because complainant failed to identify a similarly situated,

non-disabled employee who was treated more favorably than she was under

similar circumstances or to proffer any other evidence which, if left

unexplained, would support an inference of discrimination. See Prewitt

v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).

Even assuming that complainant established a prima facie case of

discrimination or retaliation, the agency articulated a legitimate,

nondiscriminatory reason for its action, namely that since complainant

had, within the last six months, returned to work after a work-related

absence, the agency could not guarantee that it could recoup the

advancement. On appeal, complainant argues that she had adequate

retirement funds to cover her sick leave request. It is unclear,

however, whether management was under any obligation to assess whether

complainant's retirement fund was sufficient to recoup the advancement

if she failed to return to work. Moreover, we find that management's

concern was reasonable given complainant's pending OWCP claim. See Cook

v. United States Postal Service, EEOC Appeal No. 01950027 (July 17,

1998), aff'd, EEOC Request No. 05981041 et al. (August 5, 1999).

Accordingly, we decline to find that the agency's explanation for denying

complainant advanced sick leave was a pretext for unlawful discrimination

or retaliation.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD's finding

of no discrimination for the reasons stated herein.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

3/20/00

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

________________________

Equal Employment Assistant

1 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.

2 Although we agree with the FAD's ultimate finding, the Commission

notes that the FAD's legal analysis, which was generally unsupported

and disorganized, was of very poor quality. See Alaban v. United States

Postal Service, EEOC Appeal No. 01956281 (June 25, 1997).

3 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: WWW.EEOC.GOV.

4 Complainant was formerly known as Milinda Stander.