0120131233
06-14-2013
Alice J. Kendall, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Alice J. Kendall,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131233
Agency No. 4H-330-0205-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 24, 2013 revised final decision concerning an equal employment opportunity (EEO) complaint claiming 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1
BACKGROUND
During the period at issue, Complainant worked as a General Clerk at the Agency's Vehicle Maintenance Facility (VMF) in Miami, Florida.
On August 3, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of national origin (white American) and age (over 40) when:
on March 22, 2010, she became aware that since she was forced to retire due to National Reassessment Process (NRP) no work was available that the work previously unavailable had been performed by her supervisor and other workers.2
On June 20, 2009, Complainant filed a Merits System Protection Board (MSPB) appeal alleging an involuntary retirement/construction discharge and a denial of her restoration rights, based on her partial recovery from a compensable injury (MSPB Docket No. AT-0752-11-0730-1-I). On August 26, 2011, the MSPB issued an initial decision dismissing Complainant's involuntary retirement/constructive removal charge for lack of jurisdiction (MSPB Docket No. AT-0752-11-0730-1-I). On October 5, 2011, the MSPB issued an initial decision dismissing the restoration issue for lack of jurisdiction (MSPB Docket No. AT-0353-11-0872-1-I).
After the investigation of the complaint, 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). Complainant initially requested a hearing. However, Complainant subsequently withdrew her request. Consequently, the Agency issued a final decision on January 24, 2013, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not show establish a prima facie case of national origin and age discrimination. The Agency further found that assuming, for the sake of argument only, that Complainant established a prima facie case of national origin and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The Supervisor Vehicle Maintenance (Supervisor) stated that she did not play a role in the NRP decision regarding Complainant being told that there was no work available. The record reflects that when Complainant could not perform her duties as a Letter Carrier, the Miami VMF provided her with work that she could perform within her limitations. The Supervisor acknowledged that Complainant was not required to retire; however, she chose to retire from Agency employment and that other employees absorbed the work Complainant had been doing.
The Supervisor stated that during the relevant period Complainant "performed the following duties: for the Tort Claims Office, she sent out requests for police reports, kept them in a book and make copies of accident cases. For the VMF, she entered work orders in the computer and entered and processed vendor payments; this work had been done by other clerks in the office. She applied for the vacant General Clerk position but was ineligible."
Further, the Supervisor stated that following Complainant's voluntary retirement in October 2009, a named employee was detailed to the Office of Injury Compensation. As a result of the employee's detail, the VMF was short staffed and the Manager Vehicle Maintenance "requested from the Manager, Operations Program Support that someone be sent to help out at the VMF since we would be losing a person. [Modified General Clerk (Clerk)] was sent to the VMF around February 25, 2010; this detail lasted approximately one month after which she was sent back to the Hialeah station she was assigned to. While at the VMF, [Clerk] assisted with the inputting of work orders. She performed no work for the Torts Claims Office. She applied for the vacant General Clerk position but was ineligible."
The Manager Vehicle Maintenance (Manager) stated that he notified Complainant that there was no work available due to the NRP, and explained to her that the NRP affected all limited duty employees who were identified as having met maximum medical improvement. The Manager stated that the Agency did not offer a job to Complainant because there was no work available at the VMF. The Manager stated that before her retirement, Complainant's duties were placing work orders and invoices, and that general clerks were still performing those functions. The Manager stated that Complainant could not continue performing those duties because she was not a general clerk. The Manager stated that as a result, Complainant "opted to retire and the work is being done by other clerks."
With respect to Complainant's allegation that her original modified general assignment still exists and is being performed by the Tort Claims Coordinator and a named employee, the Manager stated that the subject modified assignment was created so Complainant "would have something to do. [Tort Claims Coordinator] is a supervisor and handles all the tort claims. [Employee] is back at his delivery unit."
The Tort Claims Coordinator (Coordinator) stated that during the time Complainant worked at the Miami VMF, she "mailed police reports for me and kept a notebook (ledger) of outstanding requests. Once the police reports were received, she would put the reposts in my mail box." The Coordinator further stated that the Clerk "who I understand, was detailed to the VMF for approximately one month, never performed any duties or work for my office."
In a deposition, the Clerk stated that during the relevant time, she was working at the Agency's Bright Station before being detailed to the Miami VMF for approximately one month, beginning in February 25, 2010. The Clerk stated "I was put in a waiting room, which [management] called the blue room, because - - they couldn't accommodate me. So, one day [Manager] came and she said, 'there's a job available in Miami. Would you like to go there?' I said, 'sure, I'd rather be working than sitting here.'" The Clerk further stated that she was detailed to the Miami VMF "for about a month, give or take."
The Clerk stated that during her detail at the Miami VMF, management "trained me to put in the hours of the mechanics that were working the vehicles. They trained me to also put in the maintenance of the vehicles, filing, I did a lot of filing. I used to take every work that was finished and go and file it in the cabinets downstairs." The record reflects that the Clerk's tasks did not include performing any work for the Tort Claims Office while that was part of Complainant's duties.
Complainant, on appeal, argues that there are administrative errors in the Agency's final decision regarding her work title and work location. Complainant further states that in her deposition, the Clerk stated that she was allowed to sit in the blue room and that management "found her work so she didn't have to go home. I was not allowed to do that and I asked everyone to let me stay long enough to take the typing test and try to get the store keeper job or General Clerk job. I asked [Manager] and he said 'no,' [Supervisor] said . . . that they would let me know when it was posted and I could put in for store keeper at that time...before they brought [Clerk] in to fill my job, everyone was doing my work."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 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).
In the instant case, we find that the Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 14, 2013
__________________
Date
1 The record reflects that the instant final decision was revised to correct Complainant's appeal rights, which originally gave her right to appeal to the Merit System Protection Board instead of to the Commission.
2 Complainant also raised disability as a basis. However, the Agency determined that this basis falls within a pending class action complaint, Sandra McConnell et al., v. United States Postal Service, Agency No. 4B-140-0062-06. In her class complaint, McConnell alleged that the Agency discriminated against her and other similarly class members when it failed to engage in an interactive process during the National Reassessment Process (NRP) as required by the Rehabilitation Act of 1973. McConnell further alleged that the Agency failed to reasonably accommodate her and other class members during and after the NRP process. The Agency processed Complainant's claim concerning being forced to retire due to NPR no work was available that the work previously unavailable had been performed by her supervisor and other workers based on her disability under the original Agency Case No. 4H-330-0342-09, and held in abeyance pending adjudication of the McConnell complaint.
The record reflects that on August 27, 2010, the Agency issued a final decision dismissing the instant formal complaint for untimely EEO Counselor contact on the bases of national origin and age. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Kendall v. United States Postal Service, EEOC Appeal No. 0120103775 (February 1, 2011). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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