01a45447
02-17-2005
Rosalind Massie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosalind Massie v. United States Postal Service
01A45447
February 17, 2005
.
Rosalind Massie,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45447
Agency No. 1-H-342-0001-03
DECISION
Complainant timely initiated an appeal from a final agency decision,
dated July 13, 2004, pertaining to 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted in accordance with 29
C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Mail Processor at the agency's Manasota Processing and Distribution
Center, in Manasota, Florida. Believing that she was subjected to
discrimination based on national origin (African American) and disability
(Bell's Palsy), complainant sought EEO counseling on November 1, 2002.
Informal efforts to resolve complainant's concerns were unsuccessful.
On September 22, 2003, complainant filed a formal complaint claiming that
she was discriminated against when on April 22, 2002, she was issued a
Notice of Removal for Improper Conduct.<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 initially requested a hearing, but thereafter withdrew her
request and requested a final decision by the agency.
In the instant final decision, dated July 13, 2004, the agency found that
complainant's EEO Counselor contact was untimely and that complainant's
removal was not discriminatory. The agency found that complainant failed
to establish a prima facie case of either national origin or disability
discrimination. In support of the national origin claim, complainant
claimed that he learned on October 31, 2002, that a Hispanic employee
charged with a similar offense was returned to work. The agency found,
however, that the Hispanic employee was not �similarly situated� because
her restrictions did not preclude her from working elsewhere, and the
discipline was issued by a different supervisor. Regarding the disability
claim, the agency noted that although complainant indicated that she had
Bell's Palsy and migraine headaches, she failed to establish how either
condition rendered her �substantially limited� in a �major life activity.�
Consequently, the agency concluded that complainant was not disabled.
Finally, the agency found that the agency provided a legitimate,
nondiscriminatory reason for issuing the discipline and removing
complainant. The agency charged complainant with Improper Conduct
after learning that complainant worked in a hair salon during the same
period that she was absent from her Mail Processor position due to her
purported incapacitation.
As an initial matter, we note that the agency's dismissal of the
complaint for untimely EEO Counselor contact was previously addressed
by the Commission. In a previous final agency decision, dated March
7, 2003, the agency dismissed complainant's complaint on the grounds
that her initial EEO Counselor contact of November 1, 2002 contact was
untimely. On appeal, the Commission determined that while complainant
stated in her formal complaint that she was removed on June 7, 2002,
the Notification of Personnel Action showed the effective date of
removal as October 17, 2002. The Commission reversed the agency's
decision dismissing complainant's complaint, and remanded the matter to
the agency for further processing. See Rosalind R. Massie v. United
States Postal Service, Appeal No. 01A32807 (July 31, 2003); request
to reconsider denied, EEOC Request No. 05A31229 (September 22, 2003).
Consequently, the Commission will not revisit the issue of the timeliness
of complainant's initial EEO Counselor contact in the present appeal.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For complainant to prevail, she 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 Constr. 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 Dep't 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
Cen. 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. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transp., EEOC Request No. 05900159 (June 28,
1990); Peterson v. Department of Health and Human Serv., EEOC Request
No. 05900467 (June 8, 1990); Washington v. Department of the Navy,
EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, complainant claims she was discriminated against
based on national origin and disability. For the purposes of analysis
only, we assume, without finding, that complainant was an individual
with a disability.
In response to complainant's claim that her removal was discriminatory,
the agency stated that she was removed for improper conduct. The record
contains a copy of the Notice of Removal, which explains that complainant
was absent from work from February 21, 2002 through March 14, 2002.
While complainant called in and indicated that she was incapacitated
for work, an investigation revealed that complainant was working at
a hair salon. A copy of the investigation further reveals that when
asked to provide an explanation for her actions, complainant failed to
do so. Therefore, we find that the agency has articulated a legitimate,
nondiscriminatory reason for its action.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the complainant to demonstrate that
the agency's articulated reason was a pretext for discrimination. The
Commission finds that complainant has failed to present evidence that,
more likely than not, the agency's reason was pretext.
Therefore, after a careful review of the record, we AFFIRM the agency's
finding of no discrimination.
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
February 17, 2005
__________________
Date
1 The agency concluded that complainant had abused sick leave when
she advised the Postal Service that she was incapacitated for work, for
the period February 21, 2002 through March 14, 2002, but was observed
working at a hair salon.