01970230
01-21-1999
Pamela G. McClain, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.
Pamela G. McClain v. United States Postal Service
01970230
January 21, 1999
Pamela G. McClain, )
Appellant, )
)
v. ) Appeal No. 01970230
) Agency No. 4G-760-1017-95
William J. Henderson, ) Hearing No. 310-95-5255X
Postmaster General, )
United States Postal Service )
(Southeast/Southwest), )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the United States Postal
Service (agency), concerning her complaint alleging that the agency
discriminated against her in violation of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against her on the basis of her physical disability (back, neck,
shoulder, and knee injuries) when she was issued a Notice of Removal
(the Notice) on September 16, 1994. The agency accepted appellant's
complaint, conducted an investigation, provided appellant with a copy of
the investigative report, and advised appellant of her right to request
either a hearing before an EEOC administrative judge (AJ) or a final
agency decision. Appellant requested a hearing. A hearing was held on
June 13 and 20, 1996. In a recommended decision dated July 11, 1996,
the AJ found that the agency did not discriminate against appellant as
alleged. The agency subsequently adopted the AJ's recommended decision
in a final agency decision (FAD) dated August 30, 1996.
Appellant was formerly employed with the agency as a letter carrier in a
modified duty position. In August 1993, the agency and appellant entered
into a "Last Chance Agreement" as a modification of a removal action
issued to appellant as a result of her failure to meet the attendance
requirements of her position. The agreement listed five provisions
whereby appellant's attendance would be governed and under review for
a period of twenty-four months from the date of the removal action.
The agreement further provided that management would initiate a removal
action if at anytime during the review period or at the end of the
review period, appellant's attendance was unsatisfactory. During the
year following appellant's agreement, the record shows that appellant
had sixteen incidents involving her absence from work. Six of these
incidents resulted in absence without leave charges (AWOL). On September
2, 1994, appellant's supervisor issued her the Notice.
In her recommended decision, the AJ found that appellant failed to
establish a prima facie case of disparate treatment discrimination on
the basis of her physical disabilities because she failed to show that
she was a qualified person with a disability. She further found that
appellant failed to show that she was treated differently from similarly
situated employees without disabilities.
The AJ further determined that even if appellant had established an
inference of discrimination, the agency sufficiently rebutted appellant's
prima facie case by articulating a legitimate, nondiscriminatory reason
for issuing appellant a letter of removal as explained in the Notice.
Finding that the agency's explanation was sufficiently clear and
specific to provide appellant the opportunity to show pretext, the AJ
finally concluded that appellant failed to provide any evidence to prove
that the agency's explanation was pretext for unlawful discrimination.
The AJ noted that a "Last Chance Agreement" indicated that a serious
problem already existed regarding appellant's attendance. "Appellant
signed the agreement so that she would not be terminated due to her
absences. [Therefore,] it was incumbent on her to ensure her good
attendance at work. By no stretch of the imagination could appellant's
attendance be considered good."
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); see also Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-56 (1981); and Oberg v. Secretary of the
Navy, EEOC Request No. 05890451 (July 20, 1989)(applying the McDonnell
Douglas standard to disability discrimination based on disparate
treatment). The Commission concludes that, in all material respects,
the AJ accurately set forth the facts giving rise to the complaint and
the law applicable to the case. We further find that the AJ correctly
determined that appellant failed to establish that she was a qualified
person with a disability. We acknowledge appellant's argument that the
U.S. Department of Labor has determined that she has a 27% permanent
partial loss of use or loss of left arm and 20% permanent partial loss of
use or loss of left leg. However, this determination does not, per se,
entitle a person to a determination that she is a qualified person with
a disability within the meaning of the Rehabilitation Act. In order to
qualify under the Act, appellant must demonstrate that she has a physical
or mental impairment that substantially limits one or more of her major
life activities. We further note that there is nothing in the record
which indicates that appellant's disability prevented her from working
in her modified position as a letter carrier. Finally, we find, as
did the AJ, that appellant failed to show that the agency's explanation
for issuing her the Notice was a pretext for prohibited discrimination.
For instance, as noted by the AJ, appellant's attendance after entering
into the "Last Chance Agreement" with the agency was anything but
exemplary. As appellant offered no additional persuasive evidence on
appeal in support of her claim, we discern no legal basis to reverse the
AJ's finding of no discrimination. Accordingly, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the final agency
decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 21, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations