01a51599
09-28-2005
Darlene Strickland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Darlene Strickland v. United States Postal Service
01A51599
September 28, 2005
Darlene Strickland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51599
Agency No. 4H-300-0035-03
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. Sec. 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. Sec. 791 et seq. The appeal is accepted pursuant to 29
C.F.R. Sec. 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Rural Carrier at the agency's Alpharetta Post Office, in Alpharetta,
GA. Complainant sought EEO counseling and subsequently filed a formal
complaint on January 13, 2003, which was amended on April 15, 2003,
alleging that she was discriminated against on the bases of disability
(Sciatica-nerve/Rectus tear) and reprisal for prior EEO activity when:
(1) on December 23, 2002, she received a Form 50 removing her from the
agency; and
after receiving notification that her termination had been cancelled,
she was terminated again on January 19, 2003.
BACKGROUND
On April 10, 2001, complainant completed Form CA-1<1>, claiming an
on-the-job injury of a pulled muscle in the lower abdomen and lower back
on the left side. According to complainant, she was injured while moving
tubs of mail on April 6, 2001. Complainant was treated and returned
to work on April 10, 2001, on Limited Duty Status. On May 14, 2001,
the agency's investigator observed complainant move a large wall display
approximately six (6) feet tall at her personal business. On August 3,
2001, complainant was given a Notice of Removal beginning September 8,
2001, for performing physical activities outside work restrictions placed
on her by the physician and for misrepresenting her physical condition
in order to obtain OWCP benefits.
On December 6, 2001, complainant filed a grievance with the National
Rural Letter Carriers' Assocation (NRLCA). On January 24, 2002,
complainant and the agency entered into a settlement agreement.
Both parties agreed that complainant would be compensated for any time
she would have worked between July 12, 2001 through September 8, 2001.
The agreement also stated �this settlement is made without prejudice
to either party's position concerning [complainant's] removal from
the Postal Service.� Per an affidavit taken from complainant on April
11, 2004, complainant believed that the terms of the January 24, 2004
settlement agreement allowed her to return to work since she received a
PS Form 50<2>, cancelling her termination. In response, the Postmaster
stated in a April 15, 2004 affidavit, that the agency had filled out a
PS Form 50, cancelling her termination in order to allow complainant to
be compensated pursuant to the settlement agreement. The PS Form 50 was
not cancelled so that complainant could return to work. On January 18,
2003, complainant received another PS Form 50 finalizing complainant's
removal from employment for injury compensation fraud.
Complainant filed a formal EEO Complaint on January 13, 2003, alleging
disability discrimination. Her complaint was amended on April 15, 2003,
to include her retaliation claim after her termination was finalized.
We note that complainant filed a previous EEO Complaint on October 18,
2002, alleging that she was terminated because of her work-related
injury.
At the conclusion of the investigations, 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. When
complainant failed to respond within the time period specified in 29
C.F.R. Sec. 1614.108(f), the agency issued a final decision on November
15, 2004.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of discrimination based on disability and retaliation.
The agency found that complainant failed to meet the threshold test
of whether she was an employee with a disability as defined by the
Rehabilitation Act. According to the agency, complainant failed to adduce
sufficient evidence to demonstrate that she was �substantially impaired�
in any major life activity. Further, the agency found that complainant
failed to produce any evidence of disparate treatment. Specifically,
complainant did not show how the agency treated her less favorably than
similarly situated employees not in her protected class.
Furthermore, the agency found that complainant failed to satisfy her
burden of showing a prima facie case of retaliation discrimination.
Specifically, complainant failed to establish the �causal link�
between her previous protected EEO activity, and the issues raised in
her complaint. Also, the agency found that complainant failed to prove
that the employment action and the protected activity �were not wholly
unrelated�.
On appeal, complainant contends that she has the documents to prove that
she is disabled and asks the Commission to reverse the FAD. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act);
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a showing
that age was a determinative factor, in the sense that "but for" age,
complainant would not have been subject to the adverse action at issue);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to establish a prima facie case
of disability discrimination and retaliation.
Disability Discrimination
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) she is an "individual with a disability"; (2)
she is "qualified" for the position held or desired; (3) she was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy her burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
For purposes of this analysis, we assume, arguendo, that complainant
is an individual with a disability entitled to coverage under the
Rehabilitation Act. Upon review of complainant's complaint, we find that
she failed to establish a prima facie case of disability discrimination.
Specifically, complainant failed to produce evidence to show that the
agency's actions were motivated by discriminatory animus toward her
alleged disability. Complainant identified two female comparators,
F1 and F2. F1 was injured on the job when a case fell on her, and
subsequently went on a cruise one week after she had surgery. F2 was
injured on the job, has not worked on her route in five years, and
that the agency has pictures of her doing yard work. Affidavit A 7:11.
The agency has responded by stating that they were not aware of F1 or
F2's situation and that the comparators were inadequate because F1 and
F2 were not charged with fraud. Affidavit B 7:7; Affidavit C 4-5:5.
Complainant fails to establish a prima facie case of disability
discrimination. Specifically, complainant has not produced any evidence
of the agency's discriminatory animus. Complainant offered into evidence
two identified comparators, but they are not outside of complainant's
protected class. As stated above, for purposes of this analysis we
assume that complainant is an individual with a disability. The two
identified comparators, F1 and F2, are also individuals with disabilities.
Complainant must point to similarly situated employees outside of her
protected class to be probative of discrimination.
Furthermore, the record reveals that the identified comparators were
not �similarly situated�. Complainant contends that since F1 and
F2 were injured on the job, received OWCP benefits, and the agency
allegedly had knowledge of the falsity of their OWCP claims, they are
similar comparators. However, in order for such comparative evidence
to be probative of discrimination, all relevant aspects of complainant's
employment must be nearly identical to those of the comparative employees.
O'Neal v. United States Postal Service, EEOC Request No. 05910490
(July 23, 1991). Here, complainant has not proven how the comparators'
employment was �nearly identical� to her employment. There is nothing in
the record that shows that the comparators and complainant have held the
same position at the agency. More importantly, F1 and F2 were not charged
with fraud; both comparators were able to go through the OWCP process and
obtain approval for OWCP benefits, unlike complainant. Complainant does
not offer any other evidence to show how the comparators' situations were
�nearly identical� to hers. Nor has she provided any other evidence
from which an inference of disability discrimination could be drawn.
Based on the record before us, complainant has not proven the agency's
�discriminatory animus� toward her alleged disability and therefore
fails to establish a prima facie case of disability disparate treatment.
Retaliation
Complainant can establish a prima facie case of retaliation discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
retaliation claim, and in accordance with the burdens set forth in
McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 20, 1997), a complainant may establish a prima
facie case of retaliation by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
We find that complainant has failed to prove that the agency was
aware of her previous protected activity to establish a prima facie
case of retaliation discrimination. She has not proven a �causal
connection� between her prior EEO activity and this instant case.
Complainant's supervisors testified that they had no knowledge of
complainant's previous activity. Affidavit B 1:7; Affidavit C 2:5.
Complainant does not produce any evidence to permit the Commission to
conclude otherwise, especially since the postmaster has changed and her
previous supervisor has since left the agency. The Commission has held
that a complainant must produce evidence to conclusively show that the
supervisors responsible for her adverse employment actions had knowledge
of her previous protected EEO activity - especially when the supervisors
deny having knowledge. Chacon v. United States Postal Service, Appeal
No. 01920558 (November 4, 1992). Complainant has not proved conclusively
that the supervisor in charge of finalizing her termination was aware of
her prior EEO activity. Thus, complainant does not provide sufficient
evidence to make a prima facie case of retaliation because she fails to
show a �causal connection� between her previous protected activity and
this complaint.
Even assuming, arguendo, that complainant has established a prima facie
case of disability and retaliation discrimination, the agency articulates
a legitimate, non-discriminatory reason for terminating complainant.
The agency terminated complainant for fraud, when she misrepresented
her injury in order to obtain OWCP benefits. Her misrepresentations
were evidenced by pictures of her carrying and lifting a 6 feet tall
wall display at her personal business. Further, after careful review of
the settlement agreement, we agree that the agreement does not state that
complainant was able to return to work. The agreement clearly states that
�this settlement is made without prejudice to either party's position
concerning [complainant's] removal from the Postal Service.� Thus,
the agency has identified a non-discriminatory reason for terminating
complainant and she has not produced any evidence to prove that the
agency's reason is �pretextual�.
CONCLUSION
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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
September 28, 2005
__________________
Date
1 Federal Employee's Notice of Traumatic
Injury and Claim for Continuation of Pay/Compensation.
2 The Agency's Notice of Official Personnel Action form.