Tanya L. Jones, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01974502 (E.E.O.C. Sep. 9, 1999)

01974502

09-09-1999

Tanya L. Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Tanya L. Jones v. United States Postal Service

01974502

September 9, 1999

Tanya L. Jones, )

Appellant, )

) Appeal No. 01974502

v. )

) Agency Nos. 4D-2001137-94

William J. Henderson, ) 4D-2001163-94

Postmaster General, ) 4D-2001192-94

United States Postal Service, )

Agency. ) Hearing Nos. 120-95-6502X

) 120-95-6503X

_______________________________) 120-95-6504X

DECISION

Appellant filed an appeal with this Commission from a final decision

of the United States Postal Service (agency) concerning her complaints

of unlawful employment discrimination, in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

Appellant alleges discrimination based upon her race (black), sex (female)

and reprisal (prior EEO activity) when: (1) she was not allowed to work

"significant" overtime from January through August, 1994; (2) her leave

request was denied or delayed in February, 1994; (3) she was denied light

duty on March 8, and April 15, 1994; (4) she was issued disciplinary

actions on March 17 and 23, 1994; (5) she was not selected for the

position of EAS-16 Supervisor of Customer Services on March 16, 1994;

and (6) she was denied a schedule change on April 1, 1994. The appeal

is accepted in accordance with EEOC Order No. 960.001.

On September 28, 1994, appellant filed formal complaints alleging

discrimination as referenced above. Appellant's complaints were accepted

for processing. Following an investigation, appellant requested a

hearing before an EEOC Administrative Judge (AJ). On December 5, 1995,

February 14 and 15, 1996, a hearing took place before an AJ. Thereafter,

on February 26, 1997, the AJ rendered her recommended decision finding

no discrimination. The agency subsequently adopted the AJ's recommended

decision. It is this agency decision which the appellant now appeals.

Appellant has been employed by the agency since 1984. Between the

years 1987 and 1993, appellant worked on occasion as a 204B, Acting

Supervisor. Throughout 1994, appellant was employed by the agency as

a Distribution/Window Clerk at the Silver Spring, Maryland Main Office.

Appellant's job entailed working the window for approximately five hours

a day and distributing mail for Carriers during the rest of her tour

of duty. In 1992-1993, prior to the events at issue, appellant engaged

in EEO activity.

For a period of time after January 5, 1994, appellant was on the Overtime

Desired List. During the period from January 1, 1994 through August 19,

1994 (date appellant left the Silver Spring Main Office), the record

indicates that appellant received 151 hours of overtime, while four other

clerks (C1, C2, C3 and C4) on the Overtime Desired List received 459,

249.5, 196, and 417 hours of overtime, respectively.

On February 4, 1994, appellant submitted a request for leave for December

26, 27, and 28, 1994. Her request slip was never returned to her.

However, appellant's leave request was ultimately approved.

In early March, 1994, appellant submitted a request for Limited Duty

to her supervisor (S1) who submitted it to the Officer-in-Charge (OIC).

Appellant submitted with the request a Non-Job Related Duty Status Report

signed by her doctor. The OIC responded by requesting additional medical

documentation showing the diagnosis and prognosis of appellant's injury.

Appellant never provided the documentation requested. However, appellant

avowed that she had submitted medical documentation to the Medical Unit

at Southern Maryland Division.<1> Nevertheless, appellant's request was

denied by the OIC because she failed to supply him with the requested

documentation.

Even though her request for Light Duty had not been approved, appellant

refused to work the window, on March 15, 1994. As a result of her refusal

to perform her duties, S1 disciplined appellant by issuing a Letter of

Warning, dated March 16, 1994, for failure to follow a direct order to

work the window. The Letter of Warning was subsequently rescinded and

removed from appellant's file in accordance with a grievance resolution.

Appellant again refused to work the window on March 21 and 22, 1994.

In response, appellant was disciplined and received a seven-day

Suspension, dated March 23, 1994, for failure to follow instructions.

On March 16, 1994, appellant was notified that she was not selected

for any of the 15 vacant positions as an EAS-16, Supervisor of Customer

Services for which she applied. Appellant's application was one of over

100 applications which were reviewed by the Candidate Evaluation Board

(Board). The Board consisted of three individuals, B1, (White male), B2,

(Black male) and B3 (Black female). Twenty-two applicants, including

appellant received a "B" rating and received no further consideration

by the Board. The individuals recommended for selection included eight

males, ten females, 16 Blacks, one White, and one Vietnamese. Four of

the recommended selectees had prior EEO activity.

On April 1, 1994, appellant requested and was denied a schedule change

which would have changed her day off so she could go to court about a

ticket she had received. Appellant's request was denied because she

failed to provide her supervisor with requested documentation regarding

the court appearance. Thereafter, appellant requested that she be

permitted to change her schedule so she could come in early and leave

early for the court appearance. That request was approved.

"Significant" Overtime

The AJ found that appellant established a prima facie case of race, sex

and reprisal discrimination. However, the AJ found that appellant failed

to discredit the agency's articulated legitimate explanation for its

employment action or otherwise prove discriminatory animus. Specifically,

appellant's supervisor explained that when appellant's Official Personnel

File arrived at the Silver Spring Main Office, she became aware that

appellant had removed her name from the Overtime Desired List at Wheaton

and did not want to work overtime there. Appellant's supervisor further

testified that because she overlooked the fact that appellant had

subsequently changed her overtime status, she had not called appellant

for overtime. Once appellant filed a grievance about this matter, her

supervisor became aware of her interest in working overtime and started

to assign her more hours. However, in early March, 1994, appellant

requested Light Duty and could no longer work overtime. In addition,

appellant's supervisor explained that the greatest need for overtime fell

Thursdays and Fridays; days that appellant was already scheduled to work.

The AJ noted that appellant did not dispute the agency's contentions,

nor present additional facts which would indicate race, sex or reprisal

discrimination.

Leave Request

The AJ found that appellant's leave request was granted by the agency.

Accordingly, the AJ found this allegation moot. The AJ also found that

appellant failed to establish a prima facie case of discrimination in

that she failed to show that she received adverse treatment with respect

to her leave request.

Light Duty

The AJ determined that appellant failed to establish a prima facie

case of race, sex or reprisal discrimination because appellant failed

to establish that she was treated differently from those individuals

who were similarly situated to her. In addition, the AJ noted that

the practice by management was to review all medical documentation

themselves before making a decision about an employees light duty status.

While the AJ determined that appellant's supervisors had the right to

be informed of the restrictions placed upon her work, they did not have

the right to access the actual medical documentation. Accordingly,

the AJ found the requirement by appellant's supervisor to review all

medical documentation to be in violation The Rehabilitation Act of 1973,

as amended, 29 U.S.C. �701 et seq. Nevertheless, the AJ found that

appellant had not alleged a Rehabilitation Act violation or provided any

evidence of how she may have been harmed by such violation. Moreover,

appellant failed to provide any evidence of pretext or motives based

upon race, sex or reprisal.

Disciplinary Actions

The AJ found that appellant failed to proffer sufficient evidence to

create a prima facie case of discrimination. Specifically, the AJ noted

that the undisputed evidence indicated that appellant was given direct

orders to work the window, that she had not been excused by management

from working the window and yet she refused her supervisors' orders

to work. She was then disciplined. In addition, there was no evidence

of more favorable treatment toward similarly situated individuals or

discriminatory animus of any kind.

Non-selection

The AJ found that appellant failed to present a prima facie case of race,

sex or reprisal discrimination. Specifically, the AJ noted that appellant

failed to present any evidence indicating that the Board members were

aware of appellant's race or prior EEO activity at the time that they

rated her. In addition, members of appellant's protected classes were

recommended and selected for the positions and appellant failed to show

that she was treated differently than a similarly situated employee,

outside her protected classes.

Schedule Change

The AJ found that appellant failed to establish a prima facie case of

discrimination. Specifically, the AJ noted that appellant's supervisor

had required documentation from other employees, outside appellant's

classes, on previous occasions. Moreover, the AJ noted that appellant

had been granted an alternative schedule change of arriving early and

leaving early for court. In addition, the record indicates that, on

prior occasions, appellant had been granted schedule changes by the same

supervisor. Accordingly, the AJ did not find the facts sufficient to

raise an inference of discrimination.

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that, in all material respects, the AJ accurately set forth the

relevant facts and properly analyzed the case using the appropriate

regulations, policies, and laws. We note that appellant failed to raise

any contention on appeal. Accordingly, we discern no basis upon which

to disturb the AJ's finding of no discrimination and hereby AFFIRM the

agency's final decision.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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 this 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 this 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 this 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:

9/9/99

_______________ _________________________________

DATE Carlton M. Hadden, Acting Director

1Appellant did not enter this documentation into the record.