0120071547
04-09-2009
Carlett Reed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
Carlett Reed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 0120071547
Agency No. 4J530007307
DECISION
On January 31, 2007, complainant filed an appeal from the agency's January
19, 2007 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
On June 15, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American), sex
(female), color (black), and disability (diabetes) when: (1) on December
15, 2005, she was denied re-employment; (2) in February 2006, she was
denied re-employment; and (3) in June 2006, she was denied re-employment
due to her blood sugar level.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination, as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
The record shows that complainant had previously worked on and off as a
casual employee at the Fred John Station located in Milwaukee, Wisconsin.
The undisputed record shows that the agency concluded that complainant
was medically unsuitable for employment on January 13, 2006, based on the
results of laboratory test results that revealed a high glycohemoglobin
(i.e., A1C and glucose levels) score in December 2005. According to the
agency, complainant was unable to perform the essential functions of the
casual position because her medical records revealed that her diabetes
was not controlled at that time. The record further shows that in June
2006, the hiring specialist for the casual team (HR) received a call
from complainant who inquired if there were any jobs available that day.
The record shows that HR informed complainant that she did not have
any jobs available. HR stated that she generally receives calls on a
daily basis inquiring if there are any jobs. HR affirmed that there
were no jobs available for casual employees in June 2006. According to
the agency's occupational nurse (N1), she was unaware that complainant
had called in for work on the day in question and did not consider
complainant an applicant for employment during the relevant time period.
Assuming complainant is an individual with a disability within the meaning
of the Rehabilitation Act and otherwise has established a prima facie case
of discrimination with respect to each basis alleged, the preponderance of
the record shows that the agency provided a legitimate, nondiscriminatory
reason for its action (i.e., complainant was denied work in June because
no work was available). We also find the record devoid of evidence of
similarly situated individuals outside complainant's protected status
being treated more favorably than complainant. Moreover, the record does
not contain sufficient evidence of pretext or discriminatory animus on
the part of the responsible management officials. Accordingly, based
on a thorough review of the record, we conclude that the preponderance
of the evidence supports the agency's findings of no discrimination,
and AFFIRM the agency's decision.
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
April 9, 2009
Date
1 Claims 1 and 2 were previously dismissed by the agency for complainant's
failure to timely initiate EEO counseling in accordance with 29 C.F.R. �
1614.107(a)(2). The record shows that complainant's initial EEO contact
occurred on June 15, 2006. We affirm the agency's dismissal of Claims 1
and 2 and note that complainant does not raise this or any other argument
on appeal.
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0120071547
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071547