Sandra J. Tompkins, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionMay 28, 2010
0120091182 (E.E.O.C. May. 28, 2010)

0120091182

05-28-2010

Sandra J. Tompkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Sandra J. Tompkins,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 0120091182

Hearing No. 450-2007-00426X

Agency No. 4G-760-0059-07

DECISION

On December 12, 2008, complainant filed an appeal from the agency's November 12, 2008 final decision concerning an 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.1

BACKGROUND

At the time of events giving rise to this complaint, complainant worked in a rehabilitation assignment as a Modified Rural Carrier at the agency's Melear Station, which is part of the larger Arlington, Texas Postal District. Because of medical restrictions resulting from an on-the-job injury, she only performed clerk duties at the Melear Station, including answering the phone and other reception like tasks.

In February 2007, the agency made a management decision to reduce the number of full time clerk positions in the Arlington Postal District. In order to do this in compliance with the relevant collective bargaining agreements, employees who were not assigned to the clerk craft, but who performed clerk duties had to stop performing clerk duties before the actual clerks could be transferred or "excessed." Complainant's restrictions precluded her from performing work in the carrier craft and her on the job injury entitled her to benefits under the Federal Employees Compensation Act. Therefore, the agency transferred complainant from the carrier craft to the clerk craft and assigned her to a Mail Processing Clerk position at the Fort Worth City View Station in Fort Worth, Texas. Crossing into the clerk craft resulted in complainant losing her carrier craft seniority.

On May 7, 2007, complainant filed an EEO complaint. Therein, complainant claimed that she was discriminated against on the bases of race (unspecified), sex (female) , disability (ankle), age (59), and in reprisal for prior protected EEO activity when:

she was transferred to the clerk craft and "excessed" to Fort Worth.

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 but subsequently withdrew her request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that complainant failed to prove that she was subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

As an initial matter, we note that on appeal complainant's attorney objects to the quality of the investigation. One of the cures for an allegedly "heavily biased investigation" is to proceed with a hearing before an AJ. Complainant in this case withdrew her request for a hearing. Thus, complainant waived her right to cross- examine the alleged responsible management officials of whom she accuses of "incredible mendacity." In doing so, complainant forfeited the opportunity for an AJ to make dispositive credibility determinations.

Upon review of this record, we find that complainant complainant's rehabilitation position was the result of the agency's obligations under the Federal Employee Compensation Act (FECA). The Rehabilitation Act does not entitle complainant to "make work" positions. The Rehabilitation Act does entitle her to be free of disability-based discrimination with regard to the benefits and privileges of employment. In this case, the operation of collective bargaining agreement covering the clerk craft prevented the reduction of clerk positions if there were carriers performing clerk duties. Consequently, if the agency wanted to reduce the number of clerks without violating the clerks' collective bargaining agreement, it could no longer permit complainant, a member of the carrier craft, to perform clerk duties. The reason she was doing clerk duties during the period at issue was that there were no duties she could perform in the carrier craft within her medical restrictions. After almost eight years of allowing complainant to remain in a craft where there was no work she could perform but where she retained and earned seniority, the agency finally transferred her into the clerk craft and assigned her to a facility where there was eight hours worth of work within her restrictions.

Complainant argues that her case is similar to the Commission's decision in Pruneda v. United States Postal Service, EEOC Appeal No. 0720050014 (June 4, 2007) wherein we affirmed an AJ's finding of disability discrimination. In that decision, an AJ determined that the agency's explanations for creating a 2:30 am shift for carriers in rehabilitation positions at an agency facility in Bluebonnet, Texas was a pretext for disability discrimination. The agency's various explanations for creating the shift lacked credibility based on objective evidence in the record and complainant proved, by a preponderance of the evidence, that the real reason was to "encourage" disabled employees to retire by forcing them to report to work at 2:30 in the morning.

However, there is no evidence in this record to support a conclusion that the agency did this to harm complainant or to force her into retirement. We reject counsel's claim that this case mirrors Pruneda. The only evidence of adversity was complainant's loss of her seniority rights when she crossed crafts. Seniority rights are governed by that agency's collective bargaining agreements and are not wholly controlled by management. To the extent that complainant wanted to challenge her loss of seniority, she had to do so via the grievance process, which she did. The record indicates that complainant was awarded $130,000.00 pursuant to her grievance.

In sum, in response to the need to reduce the number of clerks working in the Arlington Postal District, the agency complied with the collective bargaining agreement by no longer allowing complainant to remain in the carrier craft while performing clerk duties. In compliance with its obligations under FECA, the agency found a rehabilitation position for complainant in the clerk craft and transferred her into such a position. Complainant requests the Commission to find that these actions support an inference of discrimination because she was a sixty year old white female who had engaged in prior protected activity and worked in a rehabilitation position. An inference of discrimination is created when unexplained facts suggest a prohibited consideration was a factor in an adverse employment action. The facts herein have been thoroughly explained. We find that complainant has failed to establish a prima facie case of discrimination on any of her alleged bases.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final decision.

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

May 28, 2010

__________________

Date

1 This appeal is being considered concurrently with EEOC Appeal Nos. 0120082852 and 0120082875. The complainants in those two appeals raise similar issues and worked in the same postal facility in Arlington, Texas, and are represented by the same attorney. Moreover, a related decision was recently issued, see Wilson v. USPS, Appeal No. 0120090937 (May 14, 2010).

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0120091182

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013