0120063745
06-07-2006
Robyn J. Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robyn J. Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120063745
Agency No. 4C-440-0324-05
DECISION1
On June 7, 2006, complainant filed an appeal from the agency's May 8,
2006, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission reverses the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency discriminated against
complainant on the bases of disability (bilateral hand and wrist sprain),
sex (female), and/or reprisal for prior EEO activity when, on July 21,
2005, she was sent home after working approximately four hours and was
not allowed to return to work until August 31, 2005.2
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Sales Service and Distribution Associate at the Station B Branch of
the Cleveland, Ohio Post Office. Report of Investigation (ROI), Exhibit
(Exh.) 1. The record reflects that complainant was diagnosed with
bilateral hand and wrist sprain in 2004, and her injury prevented her
from working from April 15, 2005 until her return to work on July 18,
2005.3 ROI, Affidavit (Aff.) A.
On July 21, 2005, complainant's supervisor (S-1) informed complainant
that she had to case six feet of mail an hour, and that she needed to
submit further medical documentation. ROI, Aff. A at 2. She averred
that her "hands were hurting badly," and she asked S-1 to put his request
in writing in order for her doctor to address it, but S-1 refused her
request and informed her that casing flats was the only work available
at that time. Id. at 3. She visited her doctor on July 22, 2005, and
her doctor reduced her weight restrictions and specified "no casing for
a period of three to six months." Id. at 4.
Complainant returned to work on July 23, 2005. After approximately four
hours, S-1 informed her that no work was available, and that she must
go home. Id. She testified that, when S-1 approached her, she was
performing markup on the mail and at least 10 trays of mail needed to
be worked. Id. at 5. She explained that no other employee, including
those with restrictions, was sent home, and she noted that the other
employees performing similar work were all male carriers. Id.
Thereafter, she called the office weekly, and S-1 informed her that, as
long as her restrictions remained the same, she would not be allowed to
return to work. Id. at 4. According to complainant, on approximately
August 30, 2005, she called the Postmaster's office and spoke with his
secretary regarding her circumstances. Id. She received a telephone
call that same evening directing her to return to work. Id.
On December 3, 2005, complainant filed an EEO complaint alleging
discrimination as described above. At the conclusion of the agency's
investigation,4 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). In accordance with complainant's request, the
agency issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that she was subjected to
discrimination as alleged.
In its decision, the agency found that complainant failed to establish
a prima facie case of disability, sex, or reprisal discrimination.
FAD at 4-6. The agency then reasoned that complainant was not subjected
to an adverse action inasmuch as she was eligible for continuation of
pay (COP) or compensation pursuant to Federal Employee's Compensation
Act (FECA), yet failed to avail herself of these benefits. Id. at 6.
The agency thus purported that complainant could not "obtain the benefits
through the EEO process," and that if she did apply for said benefits,
her EEO complaint is a collateral attack on the identified process.
Id. (citing Shannon v. USPS, Appeal No. 01A45226 (November 10, 2004); Owen
v. Social Security Administration, EEOC Request No. 05950865 (December
11, 1997); Zamora v. Dept. of Veterans Affairs, Appeal No. 01A44932
(September 12, 2005)). The agency further determined that, assuming
for the purposes of argument that complainant established a prima facie
case of discrimination, she failed to present evidence that the agency's
reasons are pretext for discrimination. Id. In this regard it noted that
complainant testified that she provided medical documentation stating
that she could not case mail, and that she was immediately advised that
no work existed in her restrictions. Id. The agency concluded that
complainant failed to establish discrimination as alleged. Id.
On appeal, complainant provides, among other things, a statement
from the coworker who was present when S-1 sent her home on July 23,
2005, a request for a notification of absence for the aforesaid date,
a letter regarding unemployment benefits for the period in question,
and a letter reflecting that she filed for bankruptcy in the U.S. Bank
Bankruptcy Court. Moreover, she again notes that at least twenty feet
of mail remained "unworked" on July 23, 2005 when S-1 sent her home.
The agency submits no statement on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
At the outset, the Commission finds that, inasmuch as complainant's
compensation was affected by the agency's decision to send her home,
the agency subjected her to an adverse employment action as defined
by Title VII and the Rehabilitation Act as amended in 1992 to apply
the standards in the Americans with Disabilities Act (ADA). 42 U.S.C. �
2000e-2(a)(1); 42 U.S.C. � 12112(a). Moreover, contrary to the agency's
contention, complainant's claim does not constitute a collateral attack.
Here, complainant is not challenging an action or decision that occurred
in another forum, but rather raises a claim that she was discriminated
against by the agency on the bases of sex, disability, and reprisal.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998)(An employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding.); Kleinman v. United States
Postal Service, EEOC Request No. 05940585 (September 22, 1994)(same);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
25, 1993)(same). For these reasons, we find that the agency cannot
dispense with complainant's claim procedurally.
We now turn to the merits of complainant's claim of discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). For complainant
to prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, that is, that a prohibited consideration
was a factor in the adverse employment action. 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. 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. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
In a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas; Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976); and Coffman v. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 20, 1997), a complainant may establish a prima
facie case of reprisal by showing that: (1) she engaged in a protected
activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
In the present case,5 the Commission determines that complainant
established a prima facie case of reprisal discrimination because she
engaged in a protected activity, namely, she requested an accommodation
based on her medical restrictions on an on-going basis and, of note,
on July 21 and/or 23, 2005. The Commission notes that complainant's
request for reasonable accommodation is "protected activity" under the
Rehabilitation Act. See EEOC Compliance Manual, Vol. II, Sec. 8-II(B)(2)
(May 20, 1998). Furthermore, S-1 was aware of her protected activity
as complainant made him aware of her restrictions and provided medical
documentation to support those restrictions. Subsequently, on July 21
and/or 23, 2005, she suffered an adverse employment action when she was
sent home after working approximately four hours and was not allowed to
return to work until August 31, 2005. Finally, a nexus exists between
her protected activity on July 21, 2005, when she was asked to provide
more medical documentation, and July 23, 2005, when she was sent home
after having provided said medical documentation, despite the presence
of work which she could perform within in her restrictions. See infra.
The burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. While the burden upon the
agency to articulate a reason is not an onerous one, Commission precedent
holds that the agency must set forth with sufficient clarity the reasons
for its actions such that complainant has a full and fair opportunity
to demonstrate that those reasons are pretext. See Parker v. United
States Postal Service, EEOC Request No. 05900110 (April 30, 1990);
Lorenzo v. Department of Defense, EEOC Request No. 05950931 (November 6,
1997). Upon review of the record, we find that the agency failed to meet
its burden. First, the agency investigator was forced to complete the
Report of Investigation without an affidavit from any management official.
She explained that she requested an affidavit from a manager on January
24, 2006, and S-1 on January 30, 2006; however, neither responded to
her request. ROI at 4. She further noted that, although the Manager
advised her during numerous telephone discussions that she would submit
her affidavit via facsimile and Express Mail, the affidavit was never
received. Id. With respect to S-1, the agency investigator explained
that S-1 indicated that he received an email regarding the investigation,
but did not receive the affidavit request. Id. Thereafter, the agency
investigator resent him an affidavit request on February 27, 2006, but
S-1 failed to respond. Id. The record indicates that the Report of
Investigation was issued on March 4, 2006. Not until March 15, 2006,
after the issuance of the Report of Investigation, did S-1 submitted
his affidavit. S-1 Aff.
Second, in his March 15, 2006 affidavit, when asked whether complainant
was able to perform the essential functions of her position with or
without a reasonable accommodation, S-1 indicates "Yes." S-1 Aff. at
question 7. Nonetheless, in response to an affidavit question regarding
the events of July 23, 2005, S-1 averred:
If there was work within her restrictions, she was afforded to work.
At no time did I work her out of her restrictions. . . . I have never
[had] or have no knowledge of sending complaint home because of her
physical disability or sex.
S-1 Aff. at questions 8, 9-11.
Based upon S-1's limited responses, we find that the agency has not
articulated a legitimate, nondiscriminatory reason through S-1's affidavit
or elsewhere in the Investigative File. Inasmuch as he asserted that
complainant could perform the essential functions of her position, but
then failed to explain why she was sent home, we find that he failed to
provide a reason for his action. In addition, even if we assume that
S-1's statement, "If there was work within her restrictions, she was
afforded to work," sufficiently sets forth a reason, the reason is not
supported by the record. Instead, complainant testified that, when S-1
approached her to send her home, she was performing markup on the mail
and at least 10 trays of mail needed to be worked. ROI, Aff. A at 5.
Furthermore, there is no documentation of record to reflect that work was
not available for the entire period from July 21, 2005 through August
31, 2005. We further note that, upon the Postmaster becoming aware
that complainant was not allowed to return work, complainant received
a telephone call that same evening directing her to return to work,
revealing that work was available for complainant. Id. at 4. Since the
agency has provided no other reason for its action, we find that the
agency has failed to satisfy its burden to articulate a legitimate,
nondiscriminatory reason, thus denying complainant a full and fair
opportunity to demonstrate that the agency's explanation is pretextual.
Therefore, the Commission finds that complainant has established her
claim of reprisal discrimination when, on July 21, 2005, she was sent
home after working approximately four hours and was not allowed to return
to work until August 31, 2005.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the agency's final
decision is reversed. This case is remanded to the agency to take
remedial action in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and other benefits due complainant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall conduct a supplemental investigation to determine
whether complainant is entitled to compensatory damages incurred as a
result of the agency's discriminatory actions. The agency shall allow
complainant to present evidence in support of his compensatory damages
claim. Complainant shall cooperate with the agency in this regard.
Thereafter, the agency shall issue a final decision. 29 C.F.R. �
1614.110(b). The supplemental investigation and issuance of the final
decision must be completed within sixty (60) calendar days of the date
this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
3. The agency shall provide training in the obligations and duties
imposed by Rehabilitation Act to the agency official(s) involved in the
decision to send complainant home and not allow her to return to work.
4. The agency shall consider taking disciplinary action against
the management official(s) identified as being responsible for the
decision to send complainant home and not allow her to return to work.
If the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
5. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of benefits due complainant, including evidence
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Station B Branch of the Cleveland,
Ohio Post Office copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
___3-12-2008_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Whether complainant was sent home after four hours of work on July
21 or 23, 2005, remains unclear from the record. However, the record
reveals that after that date, complainant was not allowed to return to
work until August 31, 2005.
3 Her Form CA-17, Duty Status Report, dated October 19, 2005, indicates
that her restrictions consisted of the following: lifting/carrying up to
two pounds, one to two hours per day; pulling/pushing up to two pounds,
one to two hours per day; simple grasping up to two pounds, eight hours
per day; no fine manipulation; no driving a vehicle; and no operating
machinery. ROI, Exh. 3.
4 The record reveals that the Investigative Report was submitted to
the agency on March 4, 2006, and that it did not contain an affidavit
from any management official. Thereafter, S-1 provided an affidavit
(S-1 Affidavit) on March 15, 2006.
5 Inasmuch as the Commission finds that the agency discriminated against
complainant on the basis of reprisal, we need not analyze the bases of
sex and disability discrimination.
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0120063745
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063745