Mitzie Ketner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Alleg./Mid-Atl. Region), Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01a03602 (E.E.O.C. Nov. 9, 2000)

01a03602

11-09-2000

Mitzie Ketner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Alleg./Mid-Atl. Region), Agency.


Mitzie Ketner v. United States Postal Service (Alleg./Mid-Atl. Region)

01A03602

November 9, 2000

.

Mitzie Ketner,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Alleg./Mid-Atl. Region),

Agency.

Appeal No. 01A03602

Agency No. 4D-280-1070-95

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning 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,<1> 29 U.S.C. � 791 et

seq.<2> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. � 1614.405). Complainant alleged

that she was discriminated against on the bases of sex (female), physical

disability (limited duty), and retaliation (prior EEO activity) when:

(1) On May 19, 1994, she received a Letter of Warning;

On December 8, 1994, she was offered a limited duty assignment at the

Kannapolis, NC Post Office; and

(3) On December 21, 1994, negligence by the Postmaster (PM)

caused an injury to complainant.

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

as a Rural Carrier at the agency's China Grove, NC Post Office facility.

Having suffered an on-the-job injury to her spine, complainant was

already on limited duty, but she was offered the Kannapolis assignment

on the basis that she could no longer be provided full time work within

her medical restrictions at China Grove. Believing she was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed formal complaints on August 23, 1994, and March 10, 1995.

The complaints were consolidated for investigation and at the conclusion

of the investigation, complainant was informed of her right to request a

hearing before an EEOC Administrative Judge or alternatively, to receive a

final decision by the agency. Although complainant requested a hearing,

she repeatedly requested postponement of the hearing date, and after

two and a half years, the complaints were remanded to the agency for a

decision on the record, and the agency issued a FAD.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of discrimination on any basis for each of the

three complaint issues and that, in any case, the agency articulated

legitimate, nondiscriminatory reasons for its actions which complainant

did not prove were a pretext to mask discrimination.

On appeal, complainant states that she wishes to appeal only the issue of

her limited duty assignment (issue 2 above). She contends that she never

wanted to transfer to Kannapolis and did so only because the PM told her

that if she did not, it would end her agency career. Complainant further

contends that she lost seniority when she was transferred. The agency

requests that we affirm its FAD.

To determine whether complainant was a victim of discrimination based

on sex, physical disability, and retaliation, we normally utilize the

three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,

310 (5th Cir. 1981) (applying McDonnell Douglas to disability cases);

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)

(applying McDonnell Douglas to reprisal cases). For complainant to

prevail, she must first establish a prima facie case of discrimination

that, if unexplained, reasonably gives rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor in the

adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco

Construction Co. v. Waters, 438 U.S. 567 (1978). The burden then shifts

to the agency to articulate a legitimate, nondiscriminatory reason for

its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the complainant bears

the ultimate responsibility to persuade the fact finder by a preponderance

of the evidence that the agency acted on the bais of a prohibited reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases, however. Where the

agency has articulated a legitimate, nondiscriminatory reason for the

personnel action at issue, the factual inquiry can proceed directly to

the third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's contention of discrimination, the agency

noted that complainant was offered the limited duty assignment at

Kannapolis, NC because it was within her medical restrictions and the

China Grove PM determined that complainant could no longer be accommodated

within her restrictions to keep her employed for a full 8-hour day on a

continuous basis at China Grove, due to a decrease in available work.

Although complainant was reassigned to the position of Part-Time

Flexible Distribution Clerk at the Kannapolis Post Office, she did not

lose any salary or leave, and was reimbursed for all medical expenses,

in accordance with the Federal Employee's Compensation Act covering

employees, like complainant, injured in the performance of their duties.

Furthermore, the agency's Senior Injury Compensation Specialist testified

that complainant was offered and voluntarily accepted the limited duty

assignment in the presence of herself and the District Manager, Human

Resources, after the procedures surrounding the assignment were explained

to her.

Thus, assuming that complainant established that she was an individual

with a disability, we note that since the agency articulated the

above reasons for its reassignment of complainant which we find to be

legitimate and nondiscriminatory, the burden returns to the complainant

to demonstrate that these reasons were a pretext for discrimination.

We determine that complainant has failed to do so. Complainant argues

that the China Grove PM had a discriminatory animus against her and would

not let her handle China Grove's mail, even though earlier PMs did and

kept her fully employed in the period 1991 - 1994. Complainant contends

that the PM's ostensible reason for not letting complainant process China

Grove mail was that she had falsely accused complainant of throwing a

letter in the trash instead of processing it. Here, complainant notes

that shortly after she was transferred to Kannapolis, the China Grove

PM then hired a Kannapolis city carrier to work in her office as a mail

clerk, so there must have been enough work for complainant to do at

China Grove.

For her part, the China Grove PM testified that it was not her decision

to offer complainant a limited duty assignment but that the Injury

Compensation Office handled the limited duty assignment and sent her

the paperwork so that complainant could sign it. She further testified

that she did not make complainant sign the offer, nor did she tell her

it would end her career with the agency if she did not accept the offer.

In addition, complainant did not accept the offer in her presence because

she had some questions to ask the Manager, Human Resources.

The Commission finds that complainant failed to present evidence that more

likely than not, the agency's articulated reasons for its actions were a

pretext for discrimination. In reaching this conclusion, we note that

complainant, while contending that there was still work available for

her at China Grove station, as evidenced by the PM's hiring of a mail

clerk shortly after she was transferred, did not present any evidence

that there was enough work available within her medical restrictions

for her to work full time. We further find credible the China Grove PM's

testimony that contrary to complainant's contention, the PM did not tell

her that if she did not accept the limited duty assignment, her career

with the agency would end. In this regard, we note the PM's statement

that complainant did not accept the offer in her presence since she had

some questions about the assignment to ask the Manager, Human Resources.

We also find this statement credible as it conforms to the statement

of the Senior Injury Compensation Specialist that complainant accepted

the job offer only after the procedures surrounding the assignment were

explained to her by the Specialist and the Manager, Human Resources.

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

November 9, 2000

Date

1The 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 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.