0120112009
03-20-2013
Daveta B. Mahoney, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Daveta B. Mahoney,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120112009
Agency No. 1H-303-0015-10
DECISION
On February 25, 2011, Complainant filed an appeal from the Agency's January 25, 2011 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly issued a final decision on Complainant's complaint; (2) whether the Agency properly dismissed claims 1-3 for untimely EEO Counselor contact; and (2) whether Complainant established that the Agency discriminated against her on the basis of disability in claim 4.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in a modified assignment (Limited Duty) as a Mail Handler at the Agency's Atlanta Logistics and Distribution Center in Georgia. According to a Functional Capacity Evaluation (FCE) dated October 6, 2008, Complainant was capable of walking and carrying up to 12 pounds on a constant basis. The physical requirements of Complainant's modified assignment included lifting under 10 pounds. On February 23, 2010, Complainant contacted an EEO Counselor. On June 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when:1
1. On January 13, 2009 and January 23, 2009, it denied her Requests for Temporary Schedule Change for Personal Convenience to Tour 2;
2. On May 26, 2009, it deemed her ineligible for bid position 70196321 (Mail Handler) and assigned her to the Standby Room Pay Location;
3. On October 23, 2009, it denied her request for reasonable accommodation; and
4. On February 11, 2010, it deemed her ineligible for bid position 70152809 (Mail Handler).
At the conclusion of the investigation, the Agency provided Complainant 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 the Agency subjected her to discrimination as alleged.
The Agency dismissed claims 1-3 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that the matters referenced in those claims occurred more than 45 days prior to Complainant's February 23, 2010 EEO Counselor contact. The Agency, however, also addressed those claims on the merits and found no discrimination.
Regarding claim 4, the Agency found that Complainant failed to establish a prima facie case of disability discrimination. Assuming, arguendo, that Complainant established a prima facie case, the Agency found that management articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant failed to provide medical documentation showing that she would be able to fully perform the duties of the bid position within six months of the bid. Finally, the Agency found that Complainant failed to show that management's reason was a pretext for disability discrimination.
CONTENTIONS ON APPEAL2
On appeal, Complainant acknowledged receiving "the investigation packet" but questioned why the Agency issued a final decision instead of giving her a hearing. In addition, Complainant argued that the Agency treated her less favorably than another Mail Handler (C1) with the same disability when it allowed that employee to keep a bid position.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A. (Nov. 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").
Agency's Issuance of a Final Decision
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that the agency shall provide a complainant with a copy of the investigative file and shall notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an AJ or may request an immediate final decision from the agency.
EEOC Regulation 29 C.F.R. � 1614.110(b) provides that when an agency does not receive a reply to the notice issued under � 1614.108(f), the agency shall take final action by issuing a final decision.
The record reflects that, on or about November 9, 2010, the Agency mailed Complainant a copy of the investigative file and notice of her right to request a hearing. Moreover, Complainant acknowledged on appeal that she received a copy of the "investigation packet." Complainant did not assert on appeal, and the record does not reflect, that she failed to receive the notice or requested a hearing within the 30-day time frame. Accordingly, we find that the Agency properly issued a final decision on Complainant's complaint.
Untimely EEO Counselor Contact - Claims 1-3
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered.
See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Upon review, we find that the Agency properly dismissed claims 1-3 for untimely EEO Counselor contact. Complainant averred, and the record reflects, that she learned of the Agency's actions in January 2009, May 2009, and October 2009. Complainant, however, did not initiate contact with an EEO Counselor until February 23, 2010, which is beyond the
45-day limitation period. With regard to claim 3, a fair reading of the record reflects that Complainant is complaining about an October 23, 2009 denial letter she received from the District Reasonable Accommodation Committee, rather than alleging an ongoing denial of accommodation. On appeal, Complainant did not allege that she was unaware of the time limitations or that she was prevented by circumstances beyond her control from contacting an EEO Counselor. Accordingly, we find that the Agency properly dismissed claims 1-3 for untimely EEO Counselor contact.
Disparate Treatment - Claim 4
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant establish a prima facie case of disability discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for deeming Complainant ineligible for bid position 70152809. Specifically, the Complement/Work Status Coordinator (CWSC) averred that Complainant was an ineligible bidder because she failed to provide medical documentation indicating that she will be able to fully perform the duties of the bid assignment within six months of the bid.
Moreover, we find that Complainant failed to show that the Agency's reason was a pretext for disability discrimination. Instead, the record tends to show that Complainant's failure to adhere to the bidding procedures, rather than her disability, caused the Agency to deem her ineligible for the bid position. The record contains a February 9, 2007 memorandum about the bidding process from Human Resources to all craft employees in the Atlanta District. The memorandum stated the following:
[A]n employee who is temporarily disabled will be allow[ed] to bid for and be awarded a preferred bid assignment ... provided that the employee will be able to fully assume the position within six months from the time at which the bid is submitted. Employees on Light or Limited Duty must submit medical documentation stating he/she can perform the full duties of the position within six months. This documentation must be submitted to [the Agency] by the closing date of the bid. Failure to submit the required documentation by the closing date of the bid will result in an ineligible bid. (emphasis in original).
The record reflects that Complainant was on a modified assignment (Limited Duty) when she bid on position 70152809 in January 2010. In addition, the record reflects that the bidding for the position closed on February 6, 2010. Despite the Agency's requirement that employees on limited duty must submit medical documentation by the closing date of the bid stating that they can perform the full duties of the position within six months, there is no evidence in the record that Complainant did so here. Moreover, any evidence that the Agency treated Complainant differently than C1 (same disability) tends to show that the Agency's actions were based on a reason other than Complainant's disability. Accordingly, we find that Complainant failed to show that the Agency's reason for deeming her ineligible for bid position 70152809 was a pretext for disability discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
__3/20/13________________
Date
1 In her formal complaint, Complainant did not identify dates for claims 1-3. In its acceptance letter, the Agency stated that Complainant's affidavit must identify the dates for claims 1-3 tentatively accepted for investigation and that it reserved the right to dismiss the claims based on information in Complainant's affidavit. We have included the dates as identified in Complainant's affidavit and reflected in the record.
2 On appeal, Complainant stated that, as of September 24, 2010, the Agency has sent her home as a result of the National Reassessment Process. We note that this is a new allegation and not part of the instant complaint. We advise Complainant that if she wishes to pursue this additional claim through the EEO process, she should initiate contact with an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
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0120112009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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