01985199
03-29-2000
Ann O'Connell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast/New York Metro Region), Agency.
Ann O'Connell v. United States Postal Service
01985199
March 29, 2000
Ann O'Connell, )
Complainant, )
) Appeal No. 01985199
v. ) Agency No. 1A117113796
) Hearing No. 160-97-8306X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Northeast/New York Metro Region), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the reasons that follow, we AFFIRM the FAD.
Complainant, a Letter Carrier at the agency's Merrick, New York, facility,
claims that she was subjected to disparate treatment on the bases of sex
(female) and age (7/15/49), and by the agency's failure to accommodate
her physical disability (left heel spur) as evidenced by the following
incidents:
(1) On June 3, 1996, she was issued a Listen Letter of Warning<2> for
work deficiencies citing unauthorized expansion of street time/request
for excessive auxiliary assistance on two dates in May 1996;
(2) On June 18, 1996, she was issued a Listen Seven Day Letter of
Warning in Lieu of Suspension for work deficiencies citing failure to
follow instructions (unauthorized expansion of street time/request for
excessive auxiliary assistance) and deviation from route (unauthorized
lunch break at home); and,
(3) On June 25, 1996, she was issued a Listen Seven Day Letter of
Warning in Lieu of Suspension for work deficiencies citing unauthorized
expansion of street time /request for excessive auxiliary assistance
(buying stamps during street time and extending lunch break) and failure
to follow directions (failure to return keys and account receipts).
Complainant contends that management officials discipline female
workers more harshly and more often than the male workers, for the
same infractions, and that the accommodations that she was given for
her left foot condition (a stool for casing mail, and a restricted
amount of walking) were ones she would have been entitled to even
without a disability claim. She also claims that the cited incidents
of unauthorized expansion of street time/request for excessive auxiliary
assistance would not have occurred had the agency more fully accommodated
her foot disorder, apparently suggesting that she should have been
permitted to expand her street time and request auxiliary assistance
at will.
Believing that she was a victim of discrimination, complainant filed
a formal EEO complaint with the agency on September 9, 1996. At the
conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a recommended decision (RD) without a hearing,
finding no discrimination.
The AJ concluded that even if complainant established a prima facie
case of sex or age discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions by identifying complainant's
specific work deficiencies. The AJ further found that complainant failed
to present sufficient evidence to show that these reasons were a mere
pretext for discrimination, finding that complainant's many arguments
were not supported by persuasive corroborative evidence and that she
failed to demonstrate a discriminatory motive on the part of management
regarding any of these actions on the basis of sex or age.
Additionally, the AJ also concluded that even if complainant established
a prima facie case of disability discrimination,<3> she failed to present
sufficient evidence to show that the agency failed to accommodate her
foot disorder, finding instead that the workplace modifications given to
complainant were consistent with her physician's instructions. The AJ
also found that the alleged "failure to accommodate" played no role
in those workplace deficiencies for which complainant was disciplined.
In other words, even if the agency had a duty to provide an accommodation
to complainant for her left foot disorder under the Rehabilitation Act,
the AJ determined that the agency satisfied this duty when it provided
her with a stool and restricted walking, and that these modifications were
sufficient to allow her to perform her assignments without incurring the
deficiencies at issue. The AJ further found that complainant failed to
present evidence of discriminatory animus on the part of agency officials
regarding her disability claim.
The FAD adopted the RD. On appeal, the agency requests that we affirm
its FAD. Complainant restates many of her arguments, also contending that
she established a prima facie case of sex discrimination, suggesting that
two male co-workers were disciplined right after her in order to cover up
the discrimination. Although complainant was able to document the timing
of this discipline, we find that assigning this motive to the action in
question is much too speculative. Moreover, in as much as the AJ assumed
that complainant established a prima facie case of sex discrimination, we
find that she then appropriately focused on whether complainant presented
sufficient evidence to prove pretext. See U.S. Postal Board of Governors
v. Aikens, 460 U.S. 711 (1983) and Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). Complainant also contends that the discipline
at issue was given without the benefit of a prior discussion, and that
her supervisor failed to support her (by standing up to the Postmaster
in her behalf and having the discipline canceled), but asserts that this
was the result of mismanagement, and not discrimination. Again, we find
that these arguments are not pertinent to the instant determination.
Additionally, for the first time on appeal, complainant contends that
male workers are treated more favorably than female workers in terms
of lunch break sites. However, we note that this issue has not been
investigated, and is not appropriately before us at this time.
The Commission finds 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 sufficient evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's sex, age, or disability. Moreover, we agree with
the AJ that the workplace modifications afforded complainant where
consistent with those requested by her physician, and find that it is
wholly irrelevant that complainant might have been entitled to these
modifications without having a medical need for them. Given that her
workplace modifications were consistent with her medical restrictions,
we also agree with the AJ that impediments associated with her left foot
disorder were not a factor in her cited work deficiencies. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. � 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant's postal facility was participating in a "Listen" program
to encourage the management and workers to discuss disputes, and for
discipline to be corrective and not punitive.
3The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.