0120090858
05-12-2009
Simone Y. Wiley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Simone Y. Wiley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090858
Agency No. 4K-270-0011-08
Hearing No. 430-2008-00360X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 13, 2008 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On July 21, 2007, complainant was hired as a City Carrier at the agency's Goldsboro Berkeley Station in Goldsboro, North Carolina, subject to a 90-day probationary period.
On January 14, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the basis of disability (chronic liver disease) when:
on October 12, 2007, she was separated from the Postal Service during her probationary period.
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On October 15, 2008, the AJ issued an order, dismissing the formal complaint from the hearing process. In her Order, the AJ stated that during the pre-hearing conference, complainant admitted to her that she did not believe she was legally disabled and that she had been pressured into filing a complaint based upon disability in order to see what happens. The AJ further stated that after explaining the options available to her, complainant opted to withdraw her request for a hearing. Subsequently, the AJ remanded the case to the agency for issuance of a final decision. Therefore, the agency issued the instant final decision on November 13, 2008.
In its November 13, 2008 final decision, the agency found no discrimination. The agency found that complainant did not establish a prima facie case of disability discrimination.1 The agency further found even assuming, for the sake of argument only, complainant established a prima facie case of disability discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
Complainant's supervisor (S1) stated that he was the deciding official to terminate complainant during her probationary period based on her failure to be regular in attendance. Specifically, S1 stated that complainant's attendance was "unacceptable." S1 stated he was not aware of complainant's alleged medical condition and still was not clear on what the condition was. Furthermore, S1 stated that complainant "stated something to do with her liver. No documentation to support this."
The Postmaster (PM) stated that he was the concurring official concerning complainant's termination during her probationary period. PM further stated that complainant "was not regular in attendance and it affected her ability to progress as would be expected of a new employee in the position."
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).
The agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not prove were a pretext for discrimination, and that complainant has not demonstrated that these reasons were a pretext for discrimination. The record indicates that complainant did not provide the agency with medical documentation of her alleged disability, and did not make a request for reasonable accommodation. On appeal, complainant has not provided any further persuasive argument regarding the propriety of the agency's finding of no discrimination. Therefore, after a review of the record in its entirety, including consideration of all statements 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.
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 12, 2009
__________________
Date
1 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
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0120090858
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090858