0120055566
02-21-2007
Robert Woodley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert Woodley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200555661
Agency Nos. 4G-870-0073-03
4G-870-0177-03
Hearing No. 350-2004-0016X
DECISION
Complainant timely initiated an appeal from the agency's July 18, 2005
final order concerning two formal complaints 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405(a).
During the relevant time complainant was employed as a Part-Time Flexible
(PTF) Letter Carrier at the agency's Highland Station in Albuquerque,
New Mexico. On March 14, 2003 and September 9, 2003, complainant filed
two formal EEO complaints. Therein, complainant claimed that he was
the victim of unlawful employment discrimination on the bases of race
(African-American), sex (male), color (black), and in reprisal for prior
EEO activity.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 30, 2005, the AJ issued a Pre-hearing
Order consolidating complainant's two complaints for processing.
On April 13, 2005, the AJ issued another Pre-hearing Order. Therein,
the AJ determined that she would only address the following seven claims
during the hearing:
(1) on January 28, 2003, after submitting a physician's release to return
to full duty, complainant's supervisor informed him that his documentation
was not sufficient and he was not permitted to return to duty;
(2) on February 19, 2003, he submitted a letter requesting annual leave
until he could see his doctor for clearance, and he became aware on
March 12, 2003, that he was not paid annual leave;
(3) on March 15 and 17, 2003, he was again informed that his medical
documentation was unacceptable, and he was not allowed to return to work,
removed from leave status, and placed on non-paid status;
(4) on October 29, 2003, a junior employee was assigned to a route that
was his third option, while complainant was given a more difficult and
less desirable assignment;
(5) on November 8, 2003, over 90 percent of his route was cased before
he arrived and he was not allowed to call for help;
(6) on November 24, 2003, his T-6 string was abolished; and
(7) on December 3, 2003, his reporting time was revised to 10 a.m. and
his work hours were reduced to less than 40 hours per week. 2
Following a hearing on May 25, 2005, the AJ issued a bench decision
finding no discrimination. During the hearing, complainant's
representative informed the AJ that the primary focus of complainant's
complaint was his medical documentation claim (claims (1) and (3))
and work assignment claim (claim (4)) (Hearing Transcript at p.16).
The representative also waived sex as a basis. Accordingly, the AJ only
addressed claims (1), (3) and (4).
In her bench decision, the AJ found that complainant failed to establish
a prima facie case of race and color discrimination. Specifically, the
AJ found that complaint failed to demonstrate that similarly situated
employees not in complainant's protected classes were treated differently
under similar circumstances. As to complainant's reprisal claim, the AJ
found that complainant failed to establish a prima facie case of reprisal
discrimination because there was no evidence of prior EEO activity.
The record contains the following testimony and documentation regarding
claims (1), (3) and (4).
Regarding claim (1), the record reflects that complainant's immediate
Supervisor (S1) stated that on January 10, 2003, complainant left
work in the morning on sick leave claiming a stress-related illness.
S1 further stated that complainant later returned to work later in the
afternoon with a doctor's note advising him to take two weeks off.
S1 stated that she sought guidance from the Station Manager (SM) on
what action she should take. S1 stated that SM contacted the agency
nurse and then informed her that complainant "met the requirement for a
'high-risk' diagnosis (i.e. mental health condition...).'" S1 stated
that she received instructions from SM and agency nurse that complainant
was not to return to work until he provided sufficient documentation to
be cleared by the agency nurse.
S1 stated that on January 28, 2003, complainant returned to work and she
asked him for his medical documentation. S1 stated that after reviewing
his documentation, she informed complainant that it was insufficient, and
provided him a letter given to her by the agency nurse "stating exactly
what information she needed from his doctor to be cleared to return to
work." S1 stated that she then instructed complainant that he would not
be able to return to work until he provided sufficient documentation.
S1 stated that she followed the following agency regulations in denying
complainant's documentation: Operating Instruction A-46; Employee Labor
Manuel (ELM) Sections 865.2 and 865.3; and the Memorandum of Understanding
JCAM.
The record contains a copy of ELM Sections 865.2 "Other Required
Certification" and 865.3 "Contents of Certification." Therein, Section
865.2 provides that "employees returning to duty after an absence for
communicable or contagious diseases, mental and nervous conditions,
diabetes, cardiovascular diseases, or seizure disorders or following
hospitalization must submit a physician's statement doing one of the
following: (a). Stating unequivocally that the employee is fit for full
duties without hazard to him or herself or others. (b). Indicating the
restrictions that should be considered for accommodation before return
to duty..."
Further, Section 865.3 provides that "all medical certifications must
be detailed medical documentation and not simply a statement of ability
to return to work. There must be sufficient information to make a
determination that the employee can return to work without hazard to
self or others."
Regarding claim (3), S1 stated that on March 15, 2003, complainant
submitted his medical documentation "but because the nurse was not on duty
on Saturday he was sent home by [Supervisor] until the nurse returned
on Monday." S1 further stated that on March 17, 2003, complainant's
documentation was "originally denied by the OHNA nurse because it
was not signed by his attending physician but rather a PA." S1 stated
after further consideration the nurse contacted SM and informed her that
complainant was cleared to return to duty. S1 stated that SM attempted
to contact complainant to notify him that he was cleared to return to
duty in the afternoon of March 17, 2003 but was unable to reach him.
Further, S1 stated that during the relevant time, complainant was
placed in a non-paid status. S1 further stated that complainant filed
a grievance concerning the March 15 and 17, 2003 incidents, and "was
re-credited annual leave with no loss of pay."
The record further reflects that SM stated that because the nurse does
not work on Saturdays, complainant was not allowed to work on March
15, 2003. SM stated that she faxed complainant's documentation to the
nurse; and that the nurse called her stating that the documentation
was not signed by a doctor "and she could not accept it." SM stated
that after she explained to complainant why his documentation was not
accepted, she contacted the Manager of Human Resources "and asked him
to talk to the nurse to determine what we needed to do from there."
SM stated that the Manager of Human Resources later called her and
informed her that complainant was cleared to return to work. SM stated
"I attempted to contact the complainant, but could not get a hold of him."
SM stated that she then asked the union steward to contact complainant.
The record further reflects that during his testimony, complainant
acknowledged he was paid for the period of March 15, 2003 to March 17,
2003.
Regarding claim (4), the record reflects that a Supervisor, Customer
Services (SCS) stated that on October 22, 2003, he posted the schedule
for the following week in accordance with the National Association of
Letter Carriers contract which requires that work schedules be posted
by Wednesday of the preceding week. SCS further stated that on October
24, 2003, he received complainant's opt request to work on Route 808
which had already been awarded to another PTF Carrier. SCS stated that
"Route 808 was assigned to another PTF who turned in his opt prior to
the schedule being done on 10-22-03." SCS stated that he initially
scheduled complainant "for route 829 which ended up being his second
choice for opt" but he raised objections with the union. SCS stated
that he and the union agreed that complainant would receive a string
of five routes (Routes 813, 814, 815, 816 and 817) to work and be paid
at a higher level. SCS stated that the route that complainant received
"was his third choice."
Regarding complainant's assertion that the route he received was less
desirable, SCS stated "I do not feel that it was less desirable."
SCS further stated "the majority of the routes in this office are park
and loop. The routes assigned to [complainant] are mainly park and loop
and do not receive any less or more mail than the other routes."
On July 18, 2005, the agency issued a final action implementing the AJ's
finding of no discrimination concerning claims (1), (3) and (4).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department 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 basis of a prohibited reason.
See 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. 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. See 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).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown that
the agency's articulated reasons were a pretext for discrimination.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination concerning claims (1), (3) and (4) was proper and is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
February 21, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record reflects that the agency issued two separate partial
dismissals, dated August 18, 2003 and on March 11, 2004. Complainant
does not specifically challenge the agency's partial dismissals.
Therefore, we will not further address the matters that were dismissed
therein.
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0120055566
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055566
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