01a60302
04-06-2006
Shandra D. Franks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Shandra D. Franks v. United States Postal Service
01A60302
April 6, 2006
.
Shandra D. Franks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A60302
Agency No. 4G-770-0143-04
Hearing No. 330-2005-00056X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 order.
The record reveals that complainant, a City Letter Carrier, PS-6, at
the Sage Postal Annex in Houston, Texas, filed a formal EEO complaint
on May 5, 2004, alleging that the agency discriminated against her on
the bases of disability (stress)<0>, age (D.O.B 9/17/62) and reprisal
for prior EEO activity [arising under the Rehabilitation Act] when,
on January 9, 2004, she received a Notice of Removal.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 15, 2002, the agency filed a
Motion for Findings of Fact and Conclusions of Law Without a Hearing.
Complainant did not file a response. On August 30, 2005, the AJ issued a
decision without a hearing, finding no discrimination. The AJ found that
on November 28, 2003, complainant was assigned to route 5608. On that
date, complainant requested four hours of auxiliary assistance/overtime
to complete her assignment. Her supervisor denied the request based
on her mail volume, and instructed complainant to complete her route
within 8 hours. At approximately 3:15 p.m., complainant notified the
station that she would not be able to complete the delivery of the mail
within 8 hours. Complainant was again instructed to finish her route
within 8 hours. At approximately 4:17 p.m., complainant returned to
the station with two feet of undelivered mail. The AJ noted that in
the past, complainant had brought back two and one half to three feet
of mail on a daily basis. The AJ further noted that the route is within
complainant's medical restrictions which require that she not work over
8 hours per day. On January 9, 2004, complainant was issued a proposed
notice of removal effective February 20, 2004, for unsatisfactory
work performance/unauthorized curtailment of mail on November 28, 2003.
The notice of removal also took into consideration complainant's previous
discipline.
The AJ then found that complainant did not establish a prima facie
case of age, disability or reprisal because she failed to identify any
comparative employees who were similarly situated and received more
favorable treatment under similar circumstances. Additionally, the
AJ found that complainant failed to produce evidence that the agency's
reason was a pretext for discrimination. The AJ noted that complainant
did not prove that she was an individual with a disability, nor that
her age was a determining factor in the decision to issue the notice
of removal. The AJ found that viewing all the evidence in the light
most favorable to complainant, complainant has not offered evidence to
demonstrate that she was the victim of unlawful discrimination.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm its
final order. As an initial matter we note that, as this is an appeal
from a FAD 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).
The allocation of burdens and order of presentation of proof in a case
alleging disparate treatment discrimination is a three step procedure:
complainant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and complainant must then prove, by a
preponderance of the evidence, that the legitimate reason offered by the
employer was not its true reason, but was a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, assuming arguendo that complainant is an individual with a
disability and that she otherwise established a prima facie case
of discrimination on the alleged bases, the agency has articulated
a legitimate, nondiscriminatory reason for its action; namely,
on November 28, 2003 complainant did not complete her route within
8 hours as instructed. The agency stated that complainant's previous
discipline was also considered in the issuance of the Notice of Removal.
In an attempt to establish pretext, complainant contends that ever since
management learned of her medical restriction not to work overtime,
they have subjected her to harassment and unduly harsh treatment.
This contention is inadequate, however, to establish by a preponderance
of the evidence, that the agency's reason is a pretext for discrimination
on any of the alleged bases.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine dispute
of material fact exists. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). We find that the AJ's decision
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we conclude
that complainant failed to present evidence that the agency's actions
were motivated by discriminatory animus toward her protected classes.
Therefore, we AFFIRM the agency's final order.
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
April 6, 2006
__________________
Date
0 1Complainant had a medical restriction that prevented her from working
more than 8 hours per day.