0120083746
04-15-2010
___________________, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
___________________,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120083746
Agency No. 4K-270-0035-08
DECISION
On September 2, 2008, complainant filed an appeal from the August 4, 2008
final agency decision (FAD) concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Post Office in Raleigh,
North Carolina. On January 24, 2008, complainant filed an EEO complaint
alleging that she was discriminated against on the basis of disability
(depression and post-traumatic stress disorder) when:
1. Since January 2007, she was denied a reasonable accommodation to
return to work with restrictions and,
2. On November 7, 2007, she was issued a Notice of Separation (NOS)
effective November 30, 2007.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). Initially, the FAD assumed that complainant had established
a prima facie case of disability discrimination and found that the agency
had articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency provided complainant work within her restrictions
in Raleigh, her duty station, and granting complainant's request for a
reassignment to Greensboro would violate agency policy and the collective
bargaining agreement. As to the NOS, the FAD found that complainant was
issued the NOS because she had been out of her job for over one year and
would not be returning to work. The FAD then found that complainant failed
to establish that the agency's reasons were pretextual. Accordingly,
the FAD concluded that complainant had failed to prove that she was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency failed to comply with the
requirements of the Rehabilitation Act and the Commission's regulations,
and discriminated against her on the basis of disability by denying her
request for reasonable accommodation. As to the NOS, complainant alleges
that had her request for reasonable accommodation been granted, she would
have returned to work as early as March or April of 2007, and would not
have been absent for one continuous year. Finally, complainant asserts
that she has established that she was terminated on the basis of her
disability. As a result, complainant requests that we overturn the FAD.
The agency asserts that it has articulated legitimate, nondiscriminatory
reasons for its actions which complainant has not established as
pretextual. Accordingly, the agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Denial of Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified
disabled individuals. See 29 C.F.R. � 1630. In order to establish
that complainant was denied a reasonable accommodation, complainant must
show that: (1) she is an individual with a disability, as defined by 29
C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability
pursuant to 29 C.F.R. � 1630.2(m); and (3) the agency failed to provide
a reasonable accommodation. See Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities
Act, EEOC No. 915.002 (October 17, 2002) ("Enforcement Guidance").
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. See 29 C.F.R. ��1630.2(o)
and (p). We will assume without deciding (for the purposes of this
decision) that complainant is an individual with a disability and
a qualified individual with a disability. The Commission concludes
nonetheless that complainant has failed to show that the agency denied
her request for a reasonable accommodation.
In the instant case, the Raleigh Postmaster (RP) contends that while out
on leave, complainant moved to Greensboro on her own accord and wanted
the agency to reassign her there. Report of Investigation (ROI), RP's
Aff. at 2. RP asserts that he offered to return complainant to her duty
station as an accommodation since work was available for her there. Id.
Complainant's manager (CSM) avers that work was available at complainant's
duty station at the Raleigh Post Office and she was willing to provide
work for complainant. ROI, CSM's Aff. at 2-3. CSM maintains that he
had no authority over reassignments and that he referred complainant
to the agency's eReassign process. Id. at 2. Finally, the Greensboro
Labor Relations Manager (GM) avows that the reason complainant's transfer
request to Greensboro was denied was because Raleigh was her duty station
and transferring her to Greensboro would violate the agency's regulations
and the collective bargaining agreement. Id. at 2-3. He adds that the
agency had provided her work within her restrictions at Raleigh, but
complainant took it upon herself to move to Greensboro and demanded that
the agency find work for her there without going through the reassignment
procedures. Id. at 3.
Complainant has an evidentiary burden in cases such as this to establish
that it is more likely than not that there were vacancies during
the relevant time period into which she could have been reassigned.
See Hampton v. United States Postal Service, EEOC Appeal No. 01986308
(August 1, 2002). Upon review of the record, we find that complainant
failed to satisfy her burden. Finally, we note that in U.S. Airways,
Inc. v. Barnett, the Supreme Court held that it was unreasonable, absent
"special circumstances," for an employer to provide an accommodation which
conflicts with the terms of a seniority system (collective bargaining
agreement). 535 U.S. 391 (April 29, 2002). We find that complainant has
failed to present any evidence establishing any special circumstances.
Accordingly, after a thorough review of the record and assuming arguendo
that complainant is a qualified individual with a disability, we find
that complainant failed to establish her claim that the agency failed
to provide her with a reasonable accommodation.
Disparate Treatment
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant 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 Corp. v. Green,
411 U.S. 792, 802-804 (1973); 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. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Complainant's acting manager
(AM) asserts that complainant was issued the NOS because she was not
able to return to work and could not provide a date when she may have
been able to return to work. ROI, AM's Aff. at 4. Further, AM avers
that complainant had been in Leave Without Pay (LWOP) status for over
a year and based on agency policy, if an employee has been out on leave
for over one year then the employee may be separated. Id. at 3. AM adds
that the agency never received any documentation releasing complainant
to report to work and complainant's physician did not anticipate any
release date. Id. at 4. RP asserts that during an interview with
complainant, he and AM requested documentation indicating when she
could return to work and complainant was not able to provide the agency
the requested documentation. ROI, RP's Aff. at 3. RP stresses that
complainant was not separated from the agency as stated in the letter;
rather, complainant applied for disability retirement on her own and
was approved. Id. at 4.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find
that complainant has failed to establish that the agency's reasons are
pretextual. At all times, the ultimate burden of persuasion remains with
complainant to demonstrate by a preponderance of the evidence that the
agency's reasons were not the real reasons, and that the agency acted
on the basis of discriminatory animus. Complainant failed to carry
this burden. Accordingly, we find that complainant has failed to show
that she was discriminated against as alleged.
CONCLUSION
We AFFIRM the FAD finding no discrimination because a preponderance of
the evidence of record does not establish that discrimination existed
as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 15, 2010_____________
Date
2
0120083746
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083746