01974738
06-24-1999
Sebrenia Amacker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Sebrenia Amacker, )
Appellant, )
) Appeal No. 01974738
v. ) Agency No. 4F-900-1224-94
) Hearing No. 340-95-3935X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Black), sex
(female), and reprisal (prior EEO activity), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges she was discriminated against when the agency scheduled
a fitness-for-duty (FFD) examination for her in August of 1994.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as CLARIFIED.
The record reveals that appellant, a PS-5 Clerk at the agency's West
Los Angeles, California station was involved in an off-duty automobile
accident in December of 1993. Due to her injuries, appellant was given
light duty assignments starting in January 1994 and remained on light
duty until June 1, 1994, at which time she took time off for reasons
unrelated to the accident. On June 8, 1994, the agency initiated the
process to have appellant undergo a FFD examination. Appellant then
submitted a note from her physician dated July 25, 1994, releasing
her to return to full duty work with no physical restrictions. On or
about July 28, 1994, appellant was notified that she had been scheduled
to undergo a FFD examination on August 2, 1994, for injuries related
to her accident. However, appellant believed that due to submission
of her medical statement, the FFD examination was unnecessary.<1>
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on October
24, 1994. At the conclusion of the investigation, appellant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e),
the AJ issued a Recommended Decision (RD) without a hearing finding
no discrimination.
The AJ initially concluded that appellant failed to demonstrate she was
an aggrieved employee, as the agency's requirement that she undergo a FFD
examination before she returned to her usual position did not cause her a
personal harm which affected a term, condition or privilege of employment.
As appellant was not aggrieved, the AJ concluded that she failed to
state a viable claim of discrimination. The AJ then found that should
the FFD examination be considered a sufficient personal harm, appellant
failed to establish a prima facie case of race discrimination because
she failed to demonstrate that similarly situated non-Black employees
on light duty were treated differently under similar circumstances.
However, the AJ found that appellant established a prima facie case of
sex discrimination as a similarly situated male employee was not sent for
a FFD examination after being out of work for physical reasons. The AJ
then concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that FFD examinations are routinely
scheduled for employees unable to perform their full duties for extended
periods, and appellant had been on light duty for several months
before taking leave due to stress. The AJ found that appellant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful sex discrimination. She also concluded
that appellant failed to demonstrate a prima facie case of reprisal
as there was no credible evidence that appellant's prior EEO activity
motivated the agency's scheduling of the FFD examination. The agency's
FAD adopted the AJ's RD. Appellant makes no new contentions on appeal,
and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that contrary to the AJ's
finding, the Commission has held that being required to undergo a FFD
examination concerns a term, condition or privilege of employment,
and thus appellant was aggrieved such that she stated a claim of
discrimination under 29 C.F.R. � 1614.103. See Hughlette v. United States
Postal Service, EEOC Appeal No. 01983227 (March 30, 1999). We further
find that appellant presented insufficient evidence to show that the
agency treated a similarly situated employee outside of her protected
group more favorably than she. In this regard, the Commission finds that
the male employee not required to have a FFD examination was not similarly
situated to appellant because, unlike appellant, he had been cleared to
return to duty by the agency medical unit and did not take leave from a
light duty job due to non-physical impairments. See Furnco Construction
Co. v. Waters, 438 U.S. 567 (1987). Notwithstanding the AJ's errors,
we agree with her ultimate finding that appellant failed to present
credible evidence that any of the agency's actions were in retaliation
for her prior EEO activity or were motivated by discriminatory animus
toward appellant's sex or race. We thus discern no basis to disturb
the AJ's findings of no discrimination which were based on a detailed
assessment of the record. Therefore, after a careful review of the record
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The record reflects
that after completion of the FFD examination,
appellant returned to her usual position as
a Clerk.