01a50038
01-10-2005
Dianne Waugh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dianne Waugh v. United States Postal Service
01A50038
January 10, 2005
.
Dianne Waugh,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50038
Agency No. 1-J-631-0052-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 appeal is accepted pursuant
to 29 C.F.R. � 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 casual clerk at the agency's St. Louis, MO Processing and
Distribution Center. Complainant sought EEO counseling and subsequently
filed a formal complaint on September 4, 2003, claiming that she was
discriminated against on the basis of disability when:
(1) on July 29, 2003, complainant was sent home and told not to return
to work without a doctor's note; and
on August 9, 2003, complainant was terminated during her probationary
period for attendance deficiencies.<1>
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
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant had not been
discriminated against as alleged. Specifically, the agency concluded
that complainant was not an individual with a disability as defined
by the Rehabilitation Act, because her injury did not affect a major
life activity. The agency concluded further that even if complainant was
entitled to protection under the Rehabilitation Act as an individual with
a disability, the agency articulated legitimate, nondiscriminatory reasons
for its actions.<2> Specifically, the agency determined that complainant
was sent home on July 29, 2003, for not having acceptable medical
documentation to support requested job restrictions; that complainant was
absent from work until August 9, 2003, without information to justify
the absences, and that complainant was terminated from employment at
that time. The agency concluded that complainant failed to prove that
its actions were a pretext for discrimination. This appeal followed.
The record in this case contains a copy of an email dated July 29,
2003, from an agency official to complainant's supervisor. Therein,
the agency official stated that complainant was on limited duty, and
was subsequently released to full duty by her physician, �per injury
comp.� The agency official indicated that complainant returned with a
new medical statement from a different physician and that �Inj Comp.�
said to honor the statement as limited duty until �Inj. Comp.� heard from
a claims examiner. The agency official stated that the claims examiner
did not authorize complainant to change physicians; that complainant
should therefore be considered �light duty;� and that because there is
no light duty for casual employees, she should be sent home.
The record also contains a copy of an affidavit from complainant's
supervisor, dated May 28, 2004. Therein, complainant's supervisor
stated that complainant was sent home on July 29, 2003, due to not
having acceptable medical documentation to support the job restrictions
that she was requesting. The supervisor stated further that from July
29, 2003 until August 9, 2003, he received no information to justify
complainant's absences from work. The supervisor stated that complainant
was spoken to on previous occasions; was made ware of the agency policy
on attendance; and what action could be taken regarding non-compliance.
The supervisor concluded by stating that at no time was he made aware
of any impairment that substantially limited complainant's ability to
perform one or more major life activities.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a disability case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); and Heyman v. Queens Village Comm. for
Mental Health for Jamaica Cmty. Adolescent Program, 198 F. 3d 68 (2d
Cir. 1999)(applying McDonnell Douglas, to disability 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.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, Petition No. 03900056 (May 31, 1990). In such
cases, the inquiry shifts from whether the complainant has established
a prima facie case to whether s/he has demonstrated by preponderance
of the evidence that the agency's reasons for its actions were merely a
pretext for discrimination. Id.; see also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, we find that the agency has stated legitimate, nondiscriminatory
reasons for its actions. Specifically, the agency stated that
complainant was sent home on July 29, 2003, because she did not have
medical documentation to support the job restrictions she requested.
Regarding complainant's termination, the agency states that complainant
was absent from work from July 29 through August 9, 2003 without
sufficient documentation to justify or excuse her absence. The agency
indicates further that complainant along with three other employees were
terminated at this time due to attendance problems.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
Here, complainant has failed to establish that the agency's reasons
were a mask to hide unlawful discrimination. We find that complainant
has failed to prove that the agency's actions were the result of any
discriminatory animus toward complainant's disability as alleged.
Therefore, after a careful review of the record, we AFFIRM the final
agency decision.
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
January 10, 2005
__________________
Date
1In its FAD, the agency identified the
disability as �not specified.� However, the investigative report
indicates that the disability relates to complainant's left shoulder.
The record further reflects that on April 22, 2003, complainant reported
an injury to her left shoulder when a �case gait� fell on her.
2The Commission will presume, for purposes of analysis only and without
so finding, that complainant is an individual with a disability.