01a40546
03-18-2005
Sharon L. Maykovich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon L. Maykovich v. United States Postal Service
01A40546
March 18, 2005
.
Sharon L. Maykovich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40546
Agency Nos. 1J-482-0037-98
1J-482-0031-02
Hearing No. 230-2000-04118X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning two equal employment opportunity (EEO) complaints 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 pursuant
to 29 C.F.R. � 1614.405.
Complainant, a Distribution Clerk at the agency's Royal Oak Processing and
Distribution Center in Royal Oak, Michigan, filed one of the two instant
formal complaints on May 5, 1998 (Agency No. 1J-482-0037-98) and the
other formal complaint on September 17, 2002 (Agency No.1J-482-0031-02).
In Agency No. 1J-482-0037-98, complainant claimed that she was
discriminated against on the basis of disability (left arm tenosynovitis)
when:
effective February 14, 1998, she was denied a bid resulting in her off
days being changed to Sunday/Monday.
In Agency No. 1J-482-0031-02, complainant claimed that she was
discriminated against on the bases of disability (left arm tenosynovitis)
and in reprisal for prior EEO activity when:
effective May 13, 2002, her start time was changed from 6:00 p.m. to
8:30 p.m.
The record reveals that in 1997, the agency was in the process of
eliminating Letter Sorting Machines (LSM) and moving to an automated mail
sorting system. The record further reveals that a number of Distribution
Clerks, including complainant, were displaced. On September 9, 1997,
the union and the agency signed a Memorandum of Understanding (MOU)
concerning the assignment of the displaced employees. According to the
MOU, management was to identify and post new duty assignments no later
than October 17, 1997.
In the fall of 1997, complainant was awarded a bid on a Distribution Clerk
position in the 030 Manual Mail Sorting section, effective November 8,
1997.<1> In November 1997, all employees on light or limited duty,
including complainant, received notification from a Senior Human Resources
Specialist stating that they would have to provide medical documentation
certifying that all restrictions would be lifted within six months in
order to retain the bids awarded, and that they must be able to fully
perform the functions of the job within six months. The AJ found that
this notification was in accordance with another MOU, dated September 1,
1987, which addressed situations in which an employee was temporarily
placed unable to perform duties of their assignment and were, instead,
placed on light or limited duty.
On February 14, 1998, complainant lost her Distribution Clerk bid because
she did not provide any medical documentation; and as a result, she became
an unassigned regular and her off days were changed from Saturday/Sunday
to Sunday/Monday. Furthermore, the record reveals that all former LSM
department employees who did not have bids became unassigned regulars in
the 030 section regardless of whether they were on light or limited duty.
At the conclusion of the investigation, complainant was provided copies
of the investigative reports. Complainant requested a hearing before
an EEOC Administrative Judge (AJ). Complainant's two complaints were
consolidated for the hearing.
Following a hearing on March 25, 2003 and July 7, 2003, the AJ issued a
decision finding no discrimination. During the hearing, complainant
withdrew one of her two complaints in which she claimed that she
was discriminated against on the bases of disability and in reprisal
for prior EEO activity when effective May 12, 2002, her start time
was changed from 6:00 p.m. to 8:30 p.m. (Agency No. 1J-482-0031-02).
Accordingly, complainant's other complaint (Agency No. 1J-482-0037-98)
was the sole complaint addressed by the AJ.
In her decision, the AJ found that complainant did not proffer sufficient
evidence to show that she was a qualified individual with a disability
within the meaning of the Rehabilitation Act. The AJ also found
that complainant failed to establish a prima facie case of disability
discrimination because she did not show any similarly situated employees,
not in complainant's protected class, were treated more favorably under
similar circumstances.
Further, the AJ concluded that even if complainant was able to prove she
was a qualified individual with a disability, the agency nevertheless
articulated a legitimate, nondiscriminatory reason for its action. <2>
Specifically, the AJ noted that the record reflected that complainant's
off days was changed from Saturday/Sunday to Sunday/Monday based on the
operational needs of the agency. The AJ noted that complainant's Manager
stated that most of the displaced LSM department employees, including
complainant, who were placed in the 030 section had Saturday/Sunday
off days. The Manager further stated that the Distribution Operations
Supervisor �went by seniority and how many she needed to have Saturday
and Sunday off, Sunday and Monday off, Tuesday and Wednesday off and
Thursday and Friday off.�
The AJ noted further that the Distribution Operations Supervisor
(Supervisor) in the 030 section, stated that she put the unassigned
regulars of the 030 section "in seniority order and started assigning
off days to them, with the junior persons at the bottom of the page."
The Supervisor stated that she changed complainant's off days from
Saturday/Sunday to Sunday/Monday because "I needed people to work
on Saturday." Furthermore, the Supervisor stated that complainant's
disability was not a factor in her decision to change her off days.
The AJ found that complainant did not establish that the agency's
articulated reason of operational need was a pretext to mask unlawful
discrimination.
Regarding complainant's argument that the 1987 MOU, referenced above,
violates the Rehabilitation Act because it requires an employee to have
the ability to perform the essential functions of a job without any
consideration of accommodation, the AJ concluded that complainant's
claim was flawed because the agreement only pertains to individuals
with temporary impairments without any references to individuals with
permanent impairments.
The agency's final action implemented the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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. See 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. See 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. See 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. See U.S. Postal
Service Board 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).
The Commission determines that the AJ's findings of fact are supported
by substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus
toward complainant's disability. We discern no basis to disturb the
AJ's decision.
After a careful review of the record, we AFFIRM the agency's final action,
implementing the AJ'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
March 18, 2005
__________________
Date
1The record reveals that the 030 section is
usually the area where light duty work is available.
2The Commission presumes for purposes of analysis only and without so
finding, that complainant is a qualified individual with a disability.