01A33145
03-25-2004
Shelly J. Ratzlaff, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Shelly J. Ratzlaff v. United States Postal Service
01A33145
March 25, 2004
.
Shelly J. Ratzlaff,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A33145
Agency No. 4G-730-0122-02
DECISION
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 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the Fairview Post Office, in Fairview, California.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 19, 2002, alleging that she was discriminated
against on the basis of disability when, on July 22, 2002, complainant
submitted her resignation because she was forced to scrub the carrier
case with a bleach and water solution.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision. In its FAD, the agency
applied a disparate treatment analysis, and concluded that complainant
failed to establish a prima facie case of discrimination in that she
did not identify a similarly situated individual, not in her protected
class, who was treated more favorably under similar circumstances.
The FAD concluded that complainant failed to prove that the challenged
action was discriminatory.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD. As an initial matter we note that, as this is
an appeal from a FAD 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).
Because complainant contends that she requested (and was denied)
�light duty,� which we will assume for purposes of this analysis
was a request for reasonable accommodation within the meaning of the
Rehabilitation Act, we begin by analyzing this claim within a reasonable
accommodation framework. Under the Commission's regulations, an agency
is required to make reasonable accommodation to the known physical and
mental limitations of a �qualified individual with a disability� unless
the agency can show that accommodation would cause an undue hardship.
29 C.F.R. �� 1630.2(o) and (p). Here, assuming arguendo complainant
is an individual with a disability pursuant to the Rehabilitation Act,
complainant herself asserts that she �cannot perform the major function
of [her] position as a Letter Carrier.� Report of Investigation, at
Affidavit A. She contends however, that � there are certainly other
jobs within the [agency] that [she] could perform.� Id.
Here, complainant did not prove, by a preponderance of the evidence,
that she was a qualified individual with a disability. In reaching
this conclusion, the Commission finds that complainant admitted that she
could not perform the essential functions of her Letter Carrier position
and that as a form of accommodation, she was requesting a reassignment.
However, complainant did not identify a specific vacant, funded position
to which she could have been reassigned. We note that absent evidence
of a particular vacant position, evidence that a vacant funded position
existed may be inferred based on documentary or testimonial evidence
regarding, inter alia: (1) complainant's qualifications; (2) the size of
the agency's workforce; and (3) indicia of postings and/or selections
during the pertinent time period within classes of jobs for which
complainant would have been qualified. See Barnard v. United States
Postal Service, EEOC Appeal No. 07A10002 (August 2, 2002). Complainant
failed to develop this evidence through requesting a hearing before an
Administrative Judge, or otherwise, and it is her burden to do so.
Considering this claim using a disparate treatment analysis, we note that
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Again, assuming arguendo complainant is an individual with a disability
pursuant to the Rehabilitation Act, and that she otherwise established a
prima facie case of disability discrimination, we find that the agency
has articulated a legitimate, nondiscriminatory reason for its action;
namely, the Officer-in-Charge (O1) stated that on the day in question,
after all the mail had been worked and sent out on routes, there was
no other work available within complainant's medical restrictions.
O1 further stated that because of the heightened security measures
concerning anthrax at the time, she instructed complainant to clean
the carrier case in accordance with the instructions from the District.
She further testified that she also assigned other employees to similar
duties. Complainant argues that the work that she was assigned was
�demeaning� and intended as �punishment.� Complainant additionally
contends that in the past, the Postmaster had always found �productive�
work for complainant to do. Nevertheless, complainant has failed to
show, by a preponderance of the evidence, that the agency's articulated
reason was a pretext for disability-based 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.
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. Par 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 25, 2004
__________________
Date