01A10047
03-25-2002
Sharon K. Wiseman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Sharon K. Wiseman v. United States Postal Service (Western Area)
01A10047
March 25, 2002
.
Sharon K. Wiseman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01A10047
Agency No. 4-E-800-0246-97
Hearing No. 320-98-8040x
DECISION
This case was brought by Sharon K. Wiseman (�complainant�) against
her former employer, the United States Postal Service (�the agency�).
Complainant filed a formal equal employment opportunity (�EEO�)
complaint with and against the agency on May 12, 1997, alleging that
the agency had discriminated against her unlawfully when her immediate
supervisor (�Supervisor�) (1) instructed her to visit the agency's
contract physician for an injury she purportedly sustained on-the-job;
(2) failed to provide her with the appropriate forms for filing a claim
with the Department of Labor's Office of Worker Compensation Programs
(�OWCP�); (3) indicated on a performance evaluation that she had failed to
follow agency safety rules; and (4) terminated her. Complainant claimed
that these actions were taken because of her race (White), sex (female),
and disability (�impingement�/shoulder injury), and in retaliation for
contacting the agency's EEO office. She thus was essentially claiming
that the agency had violated 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 (�the Rehabilitation Act�), as amended,
29 U.S.C. � 791 et seq.<1>
The agency issued a report of investigation on complainant's claims on
or around October 8, 1997. Complainant then requested a hearing before
an administrative judge (�the AJ�) of the United States Equal Employment
Opportunity Commission (�EEOC� or �this Commission�). The AJ held a
two-day hearing on this matter on May 16 and 17, 2000. Not longer after,
the AJ issued a decision ruling that complainant had not proven any of
her allegations and that the agency thus could not be held liable for
employment discrimination. The AJ first reasoned that complainant was
not an �individual with a disability� as defined by the Rehabilitation
Act, and thus was not covered by this statute. The AJ then noted that
complainant had failed even to establish a prima facie case of race,
sex, or reprisal discrimination. Further, the AJ found, even if she had
created an inference on discrimination on any of these bases, the agency
had provided legitimate, non-discriminatory reasons for Supervisor's
actions � reasons which complainant had failed to show were pretextual.
In a final order (�FAO�) issued on July 31, 2000, the agency informed
complainant that it intended to fully implement this AJ ruling.
Complainant then promptly filed a notice challenging this FAO (and, by
implication, the AJ's decision finding no discrimination). We docketed
complainant's notice as this appeal. Complainant did not file a statement
in support of her FAO challenge (and thus raises no new contentions on
appeal), and the agency merely requests that we affirm its earlier order.
After a consideration of the complete record before us (including the
investigative file, the hearing transcripts, and the AJ's ruling),
we are now issuing a decision on this matter pursuant to the authority
granted us by 29 C.F.R. � 1614.405(a). For the reasons detailed below,
we have concluded that the FAO in question should be upheld.
We are charged here with reviewing any legal conclusions reached by
the AJ de novo (or �anew�). See 29 C.F.R. � 1614.405(a). However,
any post-hearing factual findings by the AJ are to be upheld if they are
supported by substantial evidence in the record. Id.; see also Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(rev. Nov. 9, 1999) (�EEO MD-110�), at 9-16. Substantial evidence is
defined as �such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) [citation omitted].<2>
Any finding on whether or not discriminatory intent existed �will be
treated as a factual finding subject to the substantial evidence review
standard.� EEO MD-110, at 9-16; see also Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Thus, on appeal to this Commission, �the burden is squarely on the party
challenging the [AJ's] decision to demonstrate that the [AJ's] factual
determinations are not supported by substantial evidence.� EEO MD-110,
at 9-17. In this case, this means that complainant has the burden of
pointing out to us where and why the AJ's findings (that no discriminatory
intent by agency officials existed) are not supported by substantial
evidence. Cf. id. (pointing out that �[t]he appeals statements of the
parties, both supporting and opposing the [AJ's] decision, are vital in
focusing the inquiry on appeal so that it can be determined whether the
[AJ's] factual determinations are supported by substantial evidence�).
Complainant has not done that. Not only has she failed to provide
any appellate brief explaining to us how exactly the AJ erred here,
our own review of the entire record convinces us that there is indeed
substantial evidence to support the AJ's conclusions.
Complainant is raising claims of race-based, sex-based, disability-based,
and reprisal-based disparate treatment. Such claims are properly analyzed
under an evidentiary framework refined over time by the United States
Supreme Court. Beginning with McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the high Court issued a series of decisions explaining
how plaintiffs (like complainant) can prove unlawful disparate treatment
where direct evidence of such discrimination is lacking.<3> See id.;
see also Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978);
Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24 (1978);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711
(1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); and
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Under this Supreme Court precedent (commonly called the �McDonnell
Douglas� framework, after the case which first introduced it), and as
already noted, whether an employer intentionally discriminated against a
complainant is a question of fact. See, e.g., Aikens, 460 U.S. at 715;
cf. Burdine, 450 U.S. at 255 n. 8. The plaintiff must thus persuade
the relevant fact finder (the AJ in this case), that discrimination
actually occurred.
Accordingly, an evidentiary �burden of production� is placed initially
on the complainant to put forth a prima facie case of discrimination.
The plaintiff may do so by presenting facts which, if unexplained,
reasonably give rise to an inference of discrimination (i.e., that a
prohibited consideration was a factor in the adverse employment action).
See, e.g., McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor
Center, 509 U.S. at 510 n. 3. If complainant successfully establishes
such a prima facie case, the burden of production then shifts to the
employer to rebut the complainant's presumptive showing. That is, the
defendant must articulate legitimate, non-discriminatory reasons for
its ostensibly objectionable conduct. See, e.g., McDonnell Douglas, 411
U.S. at 802. If and when the defendant offers such a lawful explanation,
�the presumption raised by the prima facie case is rebutted� and
essentially �drops from the case.� St. Mary's Honor Center, 509 U.S. at
507. Consequently, the complainant must be given �an opportunity to prove
by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons.� Burdine, 450 U.S. at 253.
In other words, the burden of production shifts (one last time) back to
the complainant to show that the explanation offered is but a pretext
for the employer's true, prohibited discriminatory intent. See, e.g.,
McDonnell Douglas, 411 U.S. at 804, 807; and Burdine, 450 U.S. at 253.
In summary then, and quite critically, the complainant at all times
carries the ultimate burden of persuading the finder of fact � by a
preponderance of (albeit circumstantial) evidence � that the complainant
was a victim of intentional discrimination. See, e.g., Sweeney, 439
U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens,
460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518;
and Reeves, 530 U.S. at 143. The AJ ruled that complainant did not meet
this burden with respect to any of the four claims raised in complainant's
complaint. After reviewing the record on our own, we cannot conclude that
there was an insubstantial amount of evidence to support these AJ factual
findings.<4> The AJ appears to have considered the relevant facts and,
at least for the most part, referenced the appropriate regulations,
policies, and laws.<5> We therefore discern no basis to disturb the
AJ's decision or the FAO implementing it, and these rulings are affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 25, 2002
__________________
Date
1The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (�the ADA�)
to complaints of discrimination by federal employees or applicants for
federal employment.
2The United States Supreme Court has explained that �substantial
evidence� is �more than a mere scintilla . . . . It �must do more
than create a suspicion of the existence of the fact to be established.
[I]t must be enough to justify, if the trial were to a jury, a refusal to
direct a verdict when the conclusion sought to be drawn from it is one
of fact for the jury . . . .'� Universal Camera Corp., 340 U.S. at 477
[citations omitted].
3Such a procedural scheme is �crucial to the success of most [disparate
treatment] claims, for the simple reason that employers who discriminate
are not likely to announce their discriminatory motive,� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 534 (1993) (Souter, J., dissenting),
and �[t]here will seldom be �eyewitness' testimony as to the employer's
mental processes,� United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983). Consequently, the Supreme Court
has created an evidentiary �formula [that] does not require direct proof
of discrimination.� International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 358 n. 44 (1977). Cf. Transworld Airlines,
Inc. v. Thurston, 469 U.S. 111, 121 (1985) (explicitly providing that
this circumstantial evidentiary framework is actually inapplicable where
a plaintiff presents direct evidence of discrimination).
4For example, even if we assume for argument's sake that complainant
satisfied her initial obligation to put forth a prima facie case
of disability-based disparate treatment by showing that she was a
qualified �individual with a disability� within the meaning of the
Rehabilitation Act (though we are specifically declining to decide
whether in fact she was), the agency responded accordingly. That is,
it articulated legitimate, nondiscriminatory reasons for the supervisory
actions in question. With respect to incident (1), the agency claims
that Supervisor sent complainant to the agency's doctor because she was
complaining of pain in her shoulder, and it seemed prudent to require her
to see a medical professional before allowing her to continue working.
Regarding incident (2), Supervisor says that he did not fail to provide
complainant with the proper OWCP forms to report her injury and file
a claim for worker's compensation, and that he thus processed her OWCP
request as he did for all other employees. On incident (3), Supervisor
contends that he cited complainant for refusing to follow safety
procedures because she often pulled pieces of agency equipment instead
of pushing them (and the latter was agency policy). Finally, concerning
incident (4), the agency asserts it terminated complainant because she was
chronically late to work. We find that there is substantial evidence in
the record supporting these explanations � and also supporting the AJ's
finding that complainant failed to show that these reasons given were a
pretext for disability-based (or any other sort of prohibited) animus.
In this regard, we note that complainant twice specifically denied
that any incident of tardiness was attributable any physical problems.
Hearing Transcript at 9 and 13.
5We do not necessarily concur with the AJ's legal conclusion that
complainant had not established a prima facie case of reprisal
discrimination (since the AJ argued that requesting a packet of
EEO information was not activity shielded by law from reprisal).
Cf. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (noting that
once an employee in the federal sector has initiated contact with an EEO
counselor, (s)he has engaged in protected activity). We also might have
analyzed complainant's OWCP claim differently (and may have found that
this allegation failed to state a cognizable claim because it represented
a collateral attack on the federal worker's compensation process).
Cf. Butler v. United States Postal Service, EEOC Appeal No. 01A12551
(Feb. 28, 2002). However, our tweaks to the AJ's legal analysis would not
change the ultimate outcome here in any event (or alter our conclusion
that there was substantial evidence to support the AJ's factual finding
that no discrimination was committed in this case).