0120081925
08-25-2008
Sharon R. Webb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon R. Webb,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081925
Agency No. 1H-302-0023-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 15, 2008 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.
During the period at issue, complainant was employed as a General Clerk,
PS-06, at the agency's North Metro Processing and Distribution Center in
Duluth, Georgia. On May 15, 2007, complainant filed the instant formal
complaint. Therein, complainant alleged that the agency discriminated
against her on the bases of disability (herniated disc and depression)
and in reprisal for prior EEO activity when:
(1) on January 8, 2007, management misplaced her injury compensation
documents and as a result her Office of Workers' Compensation Programs
(OWCP) claim processing was delayed; and
(2) on January 24, 2007, she was not paid for annual leave.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Subsequently, complainant withdrew her
request for a hearing. On January 7, 2008, the AJ issued an order,
dismissing the formal complaint from the hearing process. Therefore,
the agency issued the instant final decision on February 15, 2008.
In its February 15, 2008 final decision, the agency found no
discrimination. The agency found that complainant did not establish a
prima facie case of disability and reprisal discrimination. The agency
further found even assuming, for the sake of argument only, complainant
established a prima facie case of disability and reprisal discrimination,
management articulated legitimate, nondiscriminatory reasons for its
various actions, which complainant did not show were a pretext.
Regarding claim 1, the Senior Operations Manager (SOM)1 stated
that on January 8, 2007, complainant attempted to submit her injury
compensation documents "but did not have all information completed."
The SOM further stated that on January 9, 2007, complainant returned
to his office with the completed documents, and that he directed her
to the Manager Distribution Operations for Tour 1 (MDO-1), to complete
the paperwork. The SOM stated "this responsibility for completing the
forms is the accountable Tour manager, not the Senior Operations Manager."
The SOM stated that after complainant told him that she had submitted the
injury compensation documents twice because it was misplaced, he asked
complainant why she did not come to him earlier. The SOM stated that
complainant "stated that she informed [another MDO, MDO-2]. I then asked
what supervisors she submitted to and she stated [Supervisor 1] and that
the second time she took it to the general clerk's office and gave it to
the employee filing in at that time [Employee 1] because the managers
and supervisors were in a meeting." The SOM stated that according to
S1, S1 signed complainant's forms and put them in a second supervisor's
mailbox. MDO stated "I then tried to locate the form by contacting
Injury Compensation which stated that they had not received the form.
So I then had [MDO-1] sign the one [complainant] submitted to me on
January 9th and it was received in Injury Compensation January 18th."
Further, the SOM stated that during the period at issue, he was unaware
of complainant's prior protected activity. The SOM further stated that
he did not discriminate against complainant based on disability and
prior protected activity.
Regarding claim 2, the record reflects that complainant alleged that on
January 23, 2007, she submitted her request for annual leave on January
24, 2007 to an identified Manager Distribution Operations (MDO-3) who
accepted her request. Complainant further alleged that she was not
paid annual leave on January 24, 2007. The record reflects that in her
affidavit, complainant acknowledged that when she raised the issue of not
being paid for her absence on January 24, 2007 to management's attention,
her annual leave was granted and she received an adjusted paycheck in
February 2007.
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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that complainant
has not demonstrated that these reasons were a pretext for unlawful
discrimination. Therefore, after a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final decision because the preponderance of the evidence
of record does not establish that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
August 25, 2008
Date
1 In his affidavit, this individual is presently identified as a Manager,
Distribution Operations, but at the time of the events at issue was the
SOM.
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0120081925
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081925