0120080687
09-28-2009
Priscilla Smith-Lutcher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Priscilla Smith-Lutcher,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120080687
Hearing No. 440-2007-00098X
Agency No. 4J-606-0163-06
DECISION
On November 21, 2007, complainant filed an appeal from the agency's
November 8, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted for de novo
review, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the Administrative Judge properly issued a decision without
a hearing finding that complainant's removal from employment was not
motivated by discrimination.
BACKGROUND
Complainant is a former Mail Processing Clerk (markup clerk), PS-05,
at the Cardiss Collins Post Office in Chicago, Illinois.1 On October
12, 2006, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of sex (female), religion (Church
of God in Christ), color (light brown), disability (fibromyalgia,
headaches, bilateral carpal tunnel syndrome, depression, post traumatic
stress disorder), age (51), and reprisal for prior protected EEO activity
[arising under Title VII, ADEA and Rehabilitation Act] when, on February
7, 2006, the agency separated her from employment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's April 11, 2007 motion for a decision without
a hearing and issued a decision without a hearing on November 1, 2007.
AJ Decision
The AJ found that the agency articulated a legitimate and
non-discriminatory reason for the separation decision. Specifically,
complainant sustained an on-the-job injury on February 8, 1999, and
received worker's compensation benefits for missing work until the
Department of Labor cancelled her benefits in July 2001. Therefore,
complainant had not reported to for work for seven years (since
February 1999). Then, after her OWCP benefits were cancelled, she had
been permitted to be in a leave without pay status for almost five years
(since July 2001).2 The agency policy allows the separation of employees
who have been in a leave without pay status in excess of one year.
The agency advised complainant on September 8, 2005, that she may be
separated from her employment because she had been in a leave without
pay status since July 2001. When complainant's employment status did
not change, the agency decided to separate her from employment based on
her long-term absence from work. The AJ then found that complainant had
presented no evidence that the agency's decision to separate complainant
from employment was more likely than not, motivated by discriminatory
animus. The AJ found no discrimination. The agency subsequently issued
a final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant states that she was wrongfully not permitted
to return to work. She submits documentation in support of her appeal
including a letter from her doctor, dated February 8, 2006, which states:
"The above named patient was under my care from 02/08/1999 until present.
During this time she has been totally and completely incapacitated and
unable to work. She has come to a significant stage of improvement and
will be able to return to work in 6 months." She also submits a letter
from the same doctor dated August 6, 2006, stating that complainant may
return to work as of August 8, 2006, with numerous medical restrictions.
In reply, the agency contends that the AJ's decision was appropriate,
and requests that the Commission affirm the final order.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor 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). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In the instant case, assuming arguendo that complainant is an individual
with a disability pursuant to the Rehabilitation Act, and that she can
otherwise establish a prima facie case of discrimination on the alleged
bases, the agency has articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, complainant had not reported to work for
many years, and, at the time of her separation, her doctor had still not
cleared her to return to work. Although we acknowledge that complainant
contends that the individual responsible for the separation had indicated
to co-workers that she was going to "get rid of" complainant, we do
not find that this raises a genuine issue of material fact concerning
whether the action was motivated by discrimination. We find no persuasive
evidence in the record that the agency's reason is merely a pretext for
discrimination.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.3 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
______09/28/09____________
Date
1 Complainant states that she has not performed the full duties of her
position as Markup Clerk since 1992 or 1993. Report of Investigation,
Complainant's Declaration at 17.
2 The AJ noted that there is no evidence in the record to show that during
this time, complainant requested some form of reasonable accommodation
for her inability to perform her assigned functions.
3 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120080687
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080687