01A33576
04-29-2004
Christine Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Christine Moore v. United States Postal Service
01A33576
April 29, 2004
.
Christine Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A33576
Agency No. 1C-451-0078-02
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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. , 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. For the following reasons, the Commission AFFIRMS
the agency's FAD.
The record reveals that during the relevant time, complainant was employed
as a Mail Handler at the agency's Bulk Mail Center, Cincinnati, Ohio
(�facility�). Complainant sought EEO counseling and subsequently filed
a formal complaint on July 19, 2002, alleging that she was discriminated
against on the bases of race (African-American), sex (female), disability
(back injury and depression), age (D.O.B. 5/26/52), and reprisal for
prior EEO activity when, since March 20, 2002, she has not been allowed
to return to work while other facility employees were allowed to return.
The record reflects that complainant was injured on-the-job in April of
1999, resulting in a further injury to her back in May of 2001. Due to
the injury to complainant's back, complainant called in sick on May 13,
2001, and she was unable to work until April of 2002. During the time
she was not able to work, complainant was diagnosed with depression.
However, complainant's physician stated in April of 2002 that she had been
treated for depression but was able to return to work with restrictions.
Regarding her physical impairments, complainant's physician stated that
he had back pain since 1999, with a diagnosis of lumbar strain and disc
bulge but no herniation of the disc. She was advised to lift no more
than 25 pounds due to this condition. Complainant contends that she
attempted to return to work, but the agency would not allow her to do
so as of March 20, 2002.<1>
Believing she was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned EEO complaint. 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 made no election and thus
the agency issued a final decision.
In its FAD, the agency concluded that complainant was not covered by the
Rehabilitation Act, as she failed to establish that she suffers from any
impairment which substantially limits one or more major life activities.
Considering complainant's claim as one of disparate treatment, the
agency found that complainant failed to establish a prima facie case
of discrimination on any basis, as she failed to establish that she was
treated differently than were any other employees outside her protected
groups under similar circumstances. The FAD then found that complainant
failed to establish a prima facie case of retaliation, as the record
indicated there had been eight months between complainant's prior EEO
activity and the agency action in March of 2002. Further, the FAD found
that complainant failed to demonstrate a causal nexus between her prior
EEO activity and the agency's actions at issue.
The FAD then found that even if complainant had established a prima facie
case of discrimination on any basis, the agency articulated legitimate,
nondiscriminatory reasons for its actions. The agency found that
complainant initially called in sick on May 13, 2001, and the agency
sent her several letters requesting documentation for her absence.
The agency stated that complainant failed to provide the requested
documentation, and although she was cleared to return to work on May 7,
2002, she failed to provide documentation so she could return to work.
On July 26, 2002, complainant was sent a letter stating that due to her
continued restrictions, her bid job was taken away, and she would need
to submit a request to the Plant Manager for a light duty position.
Agency management stated that as of December 2002, complainant had
submitted none of the requested documentation, and had not responded
to his instructions regarding requirements for her return to work.
The FAD then found that complainant failed to submit evidence that the
agency's articulated reasons for its actions were more likely than not
a pretext for discrimination. As such, the FAD found that complainant
had not been discriminated against on any basis. On appeal, complainant
contends that she established a prima facie case of discrimination on
her stated bases regarding the agency's failure to allow her to return
to work. The agency requests that we affirm its FAD.
Initially, we find that complainant has failed to establish a prima
facie case of discrimination, as she failed to establish that there
were any facility employees not in her protected groups who were treated
differently after suffering an on-the-job injury.<2> Additionally, the
Commission concurs with the FAD's finding that even assuming, arguendo,
complainant established a prima facie case of discrimination on any of
his alleged bases, the agency articulated legitimate, nondiscriminatory
reasons for its actions. The record indicates that complainant did not
return to work at the facility as she failed to provide the agency with
the documentation requested by facility management to clear her return
to a Mail Handler position. A review of the record establishes that
after the re-injury to her back in May of 2001, the facility's Supervisor
of Postal Operations (SPO) sent complainant the first of several 5-day
letters requesting that complainant provide him with documentation for
her absence. While complainant responded by providing the SPO with
a CA-2 Form claiming a job-related illness, she did not provide the
documentation requested by the facility's medical unit. The SPO further
stated that while complainant forwarded documentation stating that she
could return to work in May of 2002 regarding her depression, there was
no documentation clearing her return to work for her back injury.<3>
Without documentation indicating that complainant was physically able
to return to her usual position with or without restrictions, or an
accepted OWCP claim for a limited duty position, the SPO stated that
complainant could not be allowed to return to work unless she requested
a light duty position with the Plant Manager, which she did not do.
See Investigative Report at 26-32. After consideration of the record,
the Commission further finds that complainant has failed to demonstrate
by a preponderance of the evidence that the agency's articulated reasons
for its actions were more likely than not a pretext for discrimination
or retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
April 29, 2004
__________________
Date
1 Ultimately, on June 12, 2003, the agency proposed that it would
separate complainant from her position as she had permanent physical
restrictions, no active Office of Workers Compensation Programs claim
and had not applied for a light duty assignment.
2 The Commission also finds that complainant failed to establish a prima
facie case of retaliation, as there was an eight-month period between
complainant's prior EEO activity and the agency's actions. Further,
we agree with the agency's finding that complainant failed to proffer
evidence of a causal connection between her prior protected activity
and the agency's actions.
3 The record indicates that while one of complainant's OWCP claims for
her back injury was accepted and lasted until March 1, 2000, neither
she nor her attorney forwarded documentation to the facility or the SPO
clearing her to return to work.