Sandra A. Gaudio, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 25, 2000
01986211 (E.E.O.C. Aug. 25, 2000)

01986211

08-25-2000

Sandra A. Gaudio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sandra A. Gaudio v. USPS

01986211

08-25-00

.

Sandra A. Gaudio,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01986211

Agency No. 4J600007297

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency correctly determined that complainant was not

discriminated against on the basis of mental disability (learning

deficiency) when by letter dated December 3, 1996, she received a seven

day suspension for conduct unbecoming a postal employee for an incident

that occurred on November 30, 1996.

BACKGROUND

During the relevant period, complainant was employed by the agency

as a Full-Time Distribution Clerk at the Lake Zurich Post Office,

Lake Zurich, Illinois. She filed a formal complaint on October 30,

1997, alleging discrimination on the basis of mental disability for

the seven day suspension discussed above. Upon completion of the

investigation, complainant was notified of the opportunity to request

either a hearing before an EEOC Administrative Judge or a FAD without

a hearing. Complainant requested a FAD. The agency issued its FAD on

July 10, 1998, finding no discrimination. This appeal by complainant

followed without comment.

ANALYSIS AND FINDINGS

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). 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, i.e., 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, 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).

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. U.S. Postal

Serv. Bd. 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 Serv., EEOC Request

No. 05900467 (June 8, 1990); Washington v. Department of the Navy,

EEOC Petition No. 03900056 (May 31, 1990).

As a preliminary matter, the Commission notes that the Rehabilitation

Act does not preclude an agency from enforcing standards of conduct,

as long as such standards are job-related, consistent with business

necessity, and enforced uniformly among all employees. The Commission's

Enforcement Guidance on the Americans with Disabilities Act and

Psychiatric Disabilities, No. 915.002 (March 25, 1997) states that "an

employer may discipline an employee with a disability for engaging in

. . . misconduct if it would impose the same discipline on an employee

without a disability." Id. at 29.

In response to complainant's claim that she was discriminated against

when she received the seven day suspension, we find that the agency

has articulated legitimate, nondiscriminatory reasons for its action,

namely that the suspension was warranted by complainant's behavior.

The record shows that complainant received the suspension for her

unacceptable conduct on November 30, 1996. Complainant screamed at

another employee, �Stay out of my face, b----.� The agency stressed

that complainant's disability was never identified as a behavioral

disorder or anger control issue. There is no evidence in the record that

complainant had a behavioral or anger control disability. Rather, she had

a learning impairment that required additional time to learn or complete

a task. Thus, the agency found that the suspension was warranted both

by the November 30, 1996 incident and complainant's other incidents of

misbehavior, as evidenced by two letters of warning dated March 28, 1996,

and October 25, 1996. These warnings were both for conduct unbecoming a

postal employee. Since the agency articulated such reasons, the burden

returns to complainant to demonstrate that the agency's articulated

reasons were a pretext for discrimination. We find that complainant has

failed to do so. Complainant asserts that other employees have used

swear words at work and they have not been suspended for seven days.

The agency admits that other employees have used swear words at work,

but explains that complainant received the suspension because the incident

was merely the culmination of misbehavior for which she needed ultimately

to be disciplined. A review of the record verifies that complainant had

discipline problems prior to November 30, 1996, which her supervisor

discussed with her and warned her about. The record also shows that

complainant's behavior was contrary to specific information provided

to employees regarding workplace behavior, violence in the workplace,

respect for other employees, and common courtesy. Additionally,

the record contains no other evidence of pretext. Therefore, the

agency's determination that complainant failed to establish that she

was discriminated against is supported by the record.

CONCLUSION

The decision of the agency is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

__08-25-00________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.