0120051239
02-27-2007
Vanessa S. Beck, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vanessa S. Beck,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200512391
Agency Nos. 4F-907-0021-01
4F-907-0024-02
DECISION
Complainant filed timely appeals with this Commission from the agency's
September 29, 2004 revised final decision concerning the two formal
complaints of unlawful employment discrimination alleging violations
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).
BACKGROUND
The record reflects that complainant sustained an on-the-job back
injury on July 8, 1983. Complainant's injury claims were accepted by
the Office of Workers' Compensation Programs (OWCP) on August 26, 1983.
Prior to her separation from agency employment, complainant had been in
nearly continuous non-pay, leave of absence status since December 1983.
A second on-the-job injury claim, for stress, was accepted on January 30,
1986.
The record reflects that from 1985 to 1996, complainant was carried
on the rolls by the OWCP. In 1996, the OWCP terminated complainant's
benefits based on a determination that complainant did not have any
employment-related residuals. The record reflects that after complainant
filed an appeal from the OWCP's determination to terminate her benefits,
a hearing was held on July 16, 1996, which resulted in an affirmance of
the OWCP determination.
After complainant received a Notice of Proposed Separation from the agency
in 2000, she filed a grievance pursuant to the applicable negotiated
collective bargaining agreement. In a Step 3 decision, the parties agreed
that the Notice of Proposed Separation was defective because it contained
no appeal rights. The agency rescinded the Notice of Proposed Separation
and reinstated complainant. The record reflects that complainant was
required to initiate a light duty request pursuant to Article 13 of
the National Agreement, and provide the necessary medical documentation
articulating her medical restrictions. Following the Step 3 agreement,
complainant was provided with a "Light Duty Request for Non-Job Related
Injury/Illness" form, and was requested to submit the document to her
treating physician for the purpose of providing medical limitations for
her return to work.
On August 28, 2001, the agency issued complainant another Notice of
Separation based on her absence in a Leave Without Pay (LWOP) status
for more than one full year. In its Notice, the agency stated that
on September 7, 2001, complainant submitted a brief note from her
doctor stating that he believed complainant could return to some
type of unidentified light duty. On September 7, 2001, complainant
submitted additional medical documentation, but management found it to be
incomplete on the grounds that it did not articulate complainant's medical
restrictions. The agency further determined that the documentation did
not support complainant's recovery within a reasonable time.
The agency concluded that complainant should be separated from agency
employment effective November 2, 2001 based on three factors. First,
the agency stated that complainant had been carried in a LWOP status and
had performed no work for over ten years. Second, the agency indicated
that complainant performed no constructive work and the agency was
unable to hire a replacement due to her continued placement on its rolls.
Third, the agency stated that after over ten years of absence complainant
apparently had still not recovered fully and would be unable to perform
the full duties of her position as a letter carrier.
In Agency No. 4F-907-0021-01 (hereinafter referred to "Complaint
1"), filed on December 19, 2000, complainant claimed that she was
discriminated against on the bases of race (African-American), national
origin (African-American), sex (female), disability (unspecified),
age (D.O.B. 06/08/45), and in reprisal for prior EEO activity when the
agency removed her from employment, thereby denying accommodations for
her unspecified disabilities.
The agency issued a final decision on January 23, 2001, dismissing
Complaint 1 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of
untimely EEO Counselor contact. The Commission reversed the agency's
dismissal and remanded Complaint 1 to the agency after finding that
complainant's initial EEO Counselor contact was timely. Beck v. United
States Postal Service, EEOC Appeal No. 01A12413 (July 12, 2002).
In Agency No. 4F-907-0024-02 (hereinafter referred to "Complaint 2"),
complainant filed a formal complaint on March 29, 2002, claiming that
she was discriminated against on the bases of race, national origin,
sex, disability and in reprisal for prior EEO activity when:
(1) from April 1995 to November 2, 2001 (date of her removal), she
was placed involuntarily in a LWOP status because management failed to
accommodate her medical restrictions;
(2) on August 28, 2001, she was issued a Notice of Proposed Separation
after she allegedly advised management that her doctor had not received
appropriate forms and management allegedly failed to respond to her
doctor's request to be assigned;
(3) on October 27, 2001, she was issued a Notice of Separation effective
November 2, 2001;
(4) on November 16, 2001, management inadequately addressed inquiries
from complainant's doctor; and
(5) on November 26, 2001, she received a copy of Standard Form 8 which
falsely stated that she was removed for Absence Without Leave (AWOL).
The agency consolidated Complaints 1 and 2 for processing. At the
conclusion of the investigation of Complaints 1 and 2, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ).
On July 27, 2004, the AJ issued an Order for Additional Information,
allowing the parties to provide responses to specific questions such as
identifying comparative individuals. In his Order, the AJ instructed
the parties to respond by August 13, 2004, and informed the parties that
failure to comply with his Order could result in sanctions pursuant to
29 C.F.R. ��� 1614.107(a)(7); 109(b); 109(f)(3). The record reflects
that neither party responded to the AJ's Order by August 13, 2004.
On August 17, 2004, as a sanction, the AJ issued a decision remanding the
complaints to the agency for the issuance of a final agency decision.2
The agency issued a final decision dated September 24, 2004 and a revised
final decision dated September 29, 2004, that is the subject of the
instant appeal.3 Therein, the agency found that complainant failed
to establish a prima facie case of race, sex, national origin, age,
disability and reprisal discrimination.4 The agency further found that
even assuming arguendo complainant established a prima facie case of race,
sex, national origin, age and disability and reprisal discrimination,
management articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to show was pretextual.
A claim of disparate treatment is examined under the three-part 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).
As a preliminary matter, the Commission notes that the agency did
not expressly address each of complainant's five claims identified in
Complaint 2. However, the Commission determines that both Complaints
1 and 2 involve the same issues, are inextricably intertwined, and
that the agency has in essence addressed all the matters raised in the
subject complaints.
The Commission next determines that the agency articulated legitimate,
nondiscriminatory reasons for its actions. A review of the record
reflects that complainant was separated from agency employment because
she did not report to duty for over ten years. In an affidavit from
the Manager of Injury Compensation (Manager), the Manager stated that
she worked with complainant concerning her OWCP claims. The Manager
further stated that during the relevant time, there was "no record in
our file that reveals that a request to return to work or a request for
accommodation had been made by the complainant." The Manager stated that
in March 1995, the injury office received complainant's medical report
from her physician. The Manager stated that the report indicated that
complainant's limitations/restrictions were as follows: limitations on
her ability to respond to appropriately to persons in authority; she
was suspicious and guarded; could not interact in a public situation;
and reacts to criticism with anger and resentment. The Manager stated
that complainant did not receive a limited duty job offer during the
relevant time because she continued to receive compensation benefits
until April 12, 1995. The Manager stated that in April 1995, the OWCP
terminated complainant's compensation benefits based on the findings of
its physicians that the work-related aspects of complainant's disability
had ceased.
Further, the Manager stated that on April 26, 1995, the OWCP informed
the former Postmaster that complainant's benefits had been terminated
and advised him of the options for complainant. The Manager stated that
the options discussed were: "return to full duty, request work according
to Article 13, and the option to retire or resign." The Manager stated
that because complainant had been off work for more than twenty-one days,
her medical status had to be reviewed by a medical officer. The Manager
stated that on May 18, 1995, complainant's physician responded to an
inquiry from the former Postmaster concerning complainant's ability
to work. The Manager stated that while on June 19, 1995, the former
Postmaster sent complainant a letter inquiring her intentions to return
to work, there was "no evidence in the IC file that the complainant ever
contacted [the Postmaster] regarding reemployment." The Manager stated
that it was complainant's responsibility to request light duty per the
language in Article 13 "Assignment of Ill or Injured Regular Workforce
Employees" of the National Agreement between the agency and union.
The Manager stated that "from the point where the complainant's claim
was terminated, there is sufficient evidence in file that the complainant
continued to dispute the denial of her claim and that she had requested a
hearing." The Manager stated that following the hearing held on July 16,
1996, the OWCP decision terminate compensation was upheld. With respect
to complainant's claim that the agency failed to accommodate her and
forced her into an LWOP status from 1995 to 2001, the Manager stated "it
is our position, that had the complainant provided medical documentation
from her physician stating her restrictions and a request to return to
work, management would have advised her if work were available."
The record also contains an affidavit from a former Officer-in-Charge
(OIC). Therein, OIC stated that from July 2001 to January 2002, he
was responsible for all employees, including complainant, at the Bell
Post Office. OIC further stated that he was concerned with complainant
"in particular because she was a long-term absentee who had been
on Leave Without Pay for well over one year." OIC stated that he
discussed a possible removal action on complainant with the Manager,
Customer Services. OIC stated "our reason for considering the action was
"[complainant's] long term absence without pay, the absence of sufficient
documentation to support her absence, and her apparent unwillingness
to return to work." OIC stated that while complainant had been absent
for many years, her records indicated that she was capable of reporting
to duty in 1994 and 1995 "but that she declined to do so." OIC stated
that the documentation he relied on did not indicate that complainant
was disabled in any way. Specifically, OIC stated that he reviewed
complainant's 1994 psychiatric evaluation and 1994 orthopedic evaluation.
OIC stated that in page 9 of the psychiatric evaluation stated that
complainant "needed no work restrictions on a psychiatric basis."
OIC stated that in page 3 of the same evaluation, the psychiatrist stated
that complainant "had stated that she would not return to work until she
could be assured that the people at the post office would not continue
their violations." OIC stated that in the orthopedic evaluation,
the orthopedist stated that complainant "was not suffering from any
condition that would preclude her from performing her work." OIC stated
that despite the two evaluations, complainant did not report to duty.
Further, OIC stated that recently, a prior OIC attempted to aid
complainant's return to duty by sending a light duty request form
to her representation. OIC stated that this form is commonly used by
employees to request modified duties and to provide documentation of the
need for modified duties. OIC stated that complainant never returned
the light duty request form to either the prior OIC or himself. OIC
stated that while he was aware that complainant's physician recommended
that complainant be detailed to a different facility, there was no
documentation to support the need for the detail. OIC stated "there
certainly was no information provided by [complainant] or her physician
that would support a claim of disability. If anything, the tenor of
their correspondence was that she could work with some limitations.
Those limitations were never disclosed, with the exception of a possible
detail to another facility."
OIC stated that on August 29, 2001, the Manager, Customer Services issued
complainant a Notice of Proposed Separation after consulting with him.
OIC further stated that in the notice, the basis for complainant's
separation was her absence from work for over a year in a LWOP status
pursuant to Section 365.34 of the Employee Labor and Relations Manual
(ELM). OIC stated that on September 10, 2001, he received a notice from
complainant's physician stating that complainant could return to work
"but recommending light duty and a detail to another location for her."
OIC stated that the physician again did not provide any information
as to what duties complainant could perform or "any rationale as to
why she needed modification to her duties." OIC stated that because
complainant filed a grievance, he was asked to defer the effective date
of complainant's separation from agency employment until her grievance
was heard by the Dispute Resolution Team. OIC stated that after he
learned that the DRT found the separation action was justified by the
facts, he sent complainant a Notice of Separation dated October 23,
2001 with an effective date of November 2, 2001.
OIC stated that prior to the effective date of complainant's separation,
he received documentation from complainant's physician. OIC indicated
that the physician stated that complainant "needed 'light duty' but
provided no description of what her restrictions were." OIC stated that
he received another letter from complainant's physician after complainant
was separated from agency employment. OIC stated "I responded to him
that [complainant] was no longer employed and I would not be responding
to him any longer." Furthermore, OIC stated that complainant and her
physician had "adequate opportunity to document her need for light duty
and they had not done so."
The record contains an affidavit from the Postmaster. Therein, the
Postmaster stated that while he never supervised complainant, she had
not been to the facility for "at least two years." The Postmaster stated
that on December 22, 1998, he sent complainant a "Status of Employment"
form letter. Specifically, the Postmaster stated that the Injury Office
"provides the associate post offices with the necessary dates and
information the letters are sent to employees that are on the rolls of
a post office but have failed to perform their duties by not reporting
to the post office for an extended period of time." Furthermore, the
Postmaster stated that he did not discriminate against complainant based
on her race, national origin, sex, age disability or reprisal.
As an initial matter, the Commission discerns no clear error in the AJ's
decision to sanction the parties by dismissing the hearing request and
remanding the case to the agency for issuance of a final decision and
declines to overturn it. After a careful review of the record, including
all statements submitted on appeal, finds that complainant has not shown,
by a preponderance of the evidence, that the agency's articulated reasons,
as discussed above, were a pretext for discrimination. Accordingly, the
agency's final decision finding no discrimination concerning Complaints
1 and 2 was proper and is AFFIRMED.
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. 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 (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
February 27, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record reflects that both parties submitted their responses after
the August 13, 2004 deadline.
3 In its revised final decision, the agency added a footnote stating that
it submitted its response to the AJ's Order for additional information
by mail on August 13, 2004 and again by facsimile on August 20, 2004.
4 The Commission presumes for the purposes of analysis only, and without
so finding, that complainant is an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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