Karen M. Owens, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 16, 2005
01a53839 (E.E.O.C. Aug. 16, 2005)

01a53839

08-16-2005

Karen M. Owens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Karen M. Owens v. United States Postal Service

01A53839

August 16, 2005

.

Karen M. Owens,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53839

Agency No. 4H-310-0100-99

Hearing No. 110-A1-8113X

DECISION

Complainant timely initiated an appeal from a final agency decision

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.

The record reveals that during the relevant time, complainant was employed

as a Purchasing Specialist, Administrative Services, at the agency's

South Georgia District facility. Complainant sought EEO counseling and

subsequently filed a formal complaint for Agency No. 4H-310-0100-99 dated

March 9, 1999, alleging that she was discriminated against on the basis

of perceived disability and reprisal for prior EEO activity when:

On December 28, 1998, complainant was not permitted to return to her

previous position after receiving medical clearance from the Area Medical

Officer and instead, was offered a lower level position.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ).<1> By Order dated February 6, 2003, the

AJ determined complainant's request for a hearing (dated November 7,

2000, and received November 8, 2000) was untimely. Thereafter, the

AJ remanded the matter to the agency to issue a final decision on the

merits of complainant's complaint.<2>

On December 3, 2003, the agency issued a final decision finding

complainant failed to establish a prima facie case of retaliation.

The agency noted that complainant's prior EEO activity occurred on

November 18, 1998, three months prior to the instant matter. The agency

found that the passage of three months between the protected activity and

the allegation raised in this complaint does not give rise to an inference

of a retaliatory motive. Further, the agency found the record void of

any evidence that the Area Medical Officer was aware of complainant's

prior EEO activity. Thus, the agency concluded complainant failed to

establish a nexus between the present matter and her prior EEO activity.

With regard to her disability claim, the agency found that the record

is void of any evidence from a medical physician that complainant

suffers from a disability that substantially limits any of her major

life activities. Further, in response to complainant's assertion

that the agency believed she had a disability, the agency found

absent any documentation that complainant suffered from a disability,

it was not analyzing her case based on reasonable accommodation or

disparate treatment. The agency found that the record reveals that

agency officials articulate a legitimate nondiscriminatory explanation

for its employment decision. Specifically, the agency noted that the

Area Medical Officer issued instructions that complainant should not be

permitted to return to work. Regarding complainant's claim that she

was offered a lower level position, the agency noted that Person A,

Manager, Administrative Services, testified that he had only provided

complainant a list of eligible vacancies. The agency stated complainant

was not offered any specific position. Thus, the agency concluded that

complainant failed to establish that its articulated reasons were not

credible or were a pretext to mask prohibited discrimination.

On appeal, complainant argues that the AJ incorrectly dismissed her

request for a hearing as untimely. With regard to the agency's final

decision, complainant states that the agency failed to timely issue its

final decision. Complainant also states that the EEO Counselor failed to

provide her with information on how the federal sector process works and

failed to properly discuss her complaint with her. Further, she claims

that the EEO Counselor failed to develop an impartial and appropriate

factual record.

At the outset, we find that the evidence supports the AJ's determination

that complainant's November 7, 2000 hearing request was untimely.

Specifically, we note that on appeal, complainant does not state when

she received the agency's notice regarding her right to request a hearing

and the report of investigation. Upon review of the record, we find the

evidence sufficient to establish that the agency delivered the report

of investigation to complainant's address of record on September 8,

2000, and that complainant's hearing request was, as the AJ determined,

untimely.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first 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; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Upon review, we find that the agency articulated legitimate,

nondiscriminatory reasons for its action. The agency stated it abided by

the recommendations of the Area Medical Officer that complainant should

not be permitted to return to work. Further, the agency noted it only

provided complainant a list of eligible vacancies but did not offer any

specific position to her.

The burden turns to complainant to establish that the agency's legitimate,

nondiscriminatory reason was pretextual. The Commission finds that

complainant failed to do so. The Commission does not address whether

complainant is a qualified individual with a disability (or was regarded

as such an individual).

Therefore, the agency's final decision finding no discrimination is

AFFIRMED.

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

August 16, 2005

__________________

Date

1The record reveals that complainant was sent three separate transmittal

letters for Agency Nos. 4H-310-0037-99 (110-A1-8112X) dated August 31,

2000;4H-310-00-0101-99 (110-A1-8114X) dated September 5, 2000; and

4H-310-0100-99 (110-A1-8113X) dated September 6, 2000.

2Complainant's three complaints were consolidated for hearing, however,

upon dismissal by the AJ from the hearing process, the agency issues three

separate final decisions, from which complainant filed three separate

appeals with the Commission (EEOC Appeal Nos. 01A41676, 01A53839 and

the present appeal).