01a01333
09-26-2002
Susan Waxweiler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Susan Waxweiler v. United States Postal Service
01A01333
09-26-02
.
Susan Waxweiler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01333
Agency No. 4E-870-0006-99
DECISION
Susan Waxweiler (hereinafter referred to as complainant) filed a timely
appeal from the November 5, 1999, final decision of the United States
Postal Service (hereinafter referred to as the agency) concerning a
complaint of unlawful employment discrimination in violation of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).<1>
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
Complainant claimed discrimination based on disability (foot injury) when
she was terminated on September 22, 1998, during her probationary period
from the position of PTF clerk at the Roswell, New Mexico, facility.
The agency stated that complainant was terminated after a few weeks on the
grounds that she could not perform the duties of her position, in that,
she was not progressing as well as other new employees. The record
contains a performance evaluation report dated about five weeks after
her appointment that stated that her performance was unsatisfactory on
five factors and satisfactory on one (work quality). One brief medical
report in the file, dated October 22, 1998, stated that complainant was
treated on September 15, 1998, for "overextension of left foot/ankle,"
and that she was able to return to work on that date.<2>
Complainant has alleged a claim of disparate treatment. In analyzing
a disparate treatment claim under the Rehabilitation Act, where the
agency denies that its decisions were motivated by complainant's
disability, and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C. Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) s/he is an
"individual with a disability"; (2) s/he is "qualified" for the position
held or desired; (3) s/he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to
an inference of discrimination. Lawson v. CSX Transportation, Inc.,
245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to
the agency to articulate a legitimate, non-discriminatory reason for the
adverse employment action. In order to satisfy her burden of proof,
complainant must then demonstrate by a preponderance of the evidence
that the agency's proffered reason is not the true reason and that it
is a pretext for disability discrimination. Id.
The agency found that complainant was not a person with a disability,
having failed to show that she had an impairment that substantially
limited a major life activity and that, at most, she had a temporary
injury. Nevertheless, for purposes of further analysis, we assume,
arguendo, and without finding, that complainant established that she is
a qualified individual with a disability and is entitled to coverage
under the Rehabilitation Act. The agency stated that it terminated
complainant's employment, because she failed to perform the duties of
her position and did not progress as well as similar employees. We find
that the agency articulated a legitimate, nondiscriminatory reason for
its action. The burden now returns to complainant to demonstrate that
the agency's reason was not its true reason and that it acted based
on discriminatory animus. Complainant has not carried her burden to
demonstrate pretext.
CONCLUSION
Accordingly, the agency's decision was proper and 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
____09-26-02______________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2Agency supervisors stated that they noticed complainant walked with
a limp and wore a brace; upon inquiry, she informed them that she
had injured her foot at home. After she was terminated, however,
complainant filed a claim for injury compensation, contending that she
had been injured at work on September 6, 1998; her claim was denied by
OWCP on January 5, 1999.