Pamela G. McClain, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest), Agency.

Equal Employment Opportunity CommissionJan 21, 1999
01970230 (E.E.O.C. Jan. 21, 1999)

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