01A00285
08-13-2002
Annette W. Jolly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Annette W. Jolly v. United States Postal Service
01A00285
August 13, 2002
.
Annette W. Jolly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A00285
Agency Nos. 4-H-350-0150-97, 4-H-350-0205-97, 4-H-350-0119-98,
4-H-350-0121-98
Hearing Nos. 130-99-8108X, 130-99-8105X, 130-99-8107X, 130-99-8106X
DECISION
Complainant timely initiated this appeal from the agency's final
decision concerning her four above-captioned 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 alleges in
her complaints that she was subjected to unlawful discrimination when:
(1) from January 28, 1997, through March 22, 1997, she was not provided
with a limited duty assignment;
(2) on April 28, 1997, she was instructed to perform duties that violated
her medical restrictions;
(3) on December 31, 1997, she received a letter of warning for
unsatisfactory work performance, on January 5, 1998, she was charged
with being AWOL, and on January 22, 1998, she was issued a letter of
warning for unsatisfactory work performance and AWOL; and
(4) on January 9, 1998, she was not permitted to work in a light duty
assignment as stipulated by her physician.
Complainant asserts in her complaint that the agency was unlawfully
motivated in the actions alleged above on the basis of her physical
disability (ulnar neuropathy). She further contends that the agency was
unlawfully motivated by a discriminatory animus toward her race (White)
in the action alleged in complaint (2), by a discriminatory animus toward
her mental disability in the actions alleged in complaints (3) and (4),
and in retaliation for her prior EEO activity in the actions alleged in
complaints (1), (3), and (4).
At the conclusion of the agency's investigation into her complaints,
complainant received a copy of the investigative reports and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination. The AJ found
that the matter was appropriate for resolution without a hearing,
as there existed no genuine dispute over any fact material to the
complainant's claims. Turning to the merits of the claims, the AJ
found that complainant had established that she was an individual
with a disability, but that she had nevertheless failed to establish
a prima facie case of race or disability discrimination, or a prima
facie case of retaliation for prior protected activity. The AJ noted
that complainant had failed to present any evidence that she had been
subjected to unlawful disparate treatment as claimed. The AJ recommended
that the agency enter a finding of no discrimination, and the agency
heeded this recommendation and made a finding of no discrimination in
its FAD. This appeal followed, in which neither complainant nor the
agency submitted arguments in support of their respective positions.
In claims such as those presented by complainant, which allege disparate
treatment based upon race and disability, and in retaliation for
participation in protected EEO activity, and where there is an absence
of direct evidence of such discrimination or retaliation, the allocation
of burdens and order of presentation of proof is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First,
complainant must 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. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
Our review of the record on appeal<1> reveals that complainant failed
to present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward her race or disabilities. We also note that the agency
articulated legitimate, nondiscriminatory reasons for its actions, and
that complainant failed to prove that these articulated reasons were
merely a pretext for unlawful discrimination. See Reeves, 530 U.S. at
143 (noting that �[a]lthough intermediate evidentiary burdens shift
back and forth under [the McDonnell Douglas] framework, the ultimate
burden of persuading the trier of fact that the [agency] intentionally
discriminated against the [complainant] remains at all times with the
[complainant]�). Accordingly, we discern no basis to disturb the decision
of the AJ or the agency. Therefore, after a careful review of the record,
it is the decision of the Commission to AFFIRM the agency's FAD.
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
August 13, 2002
Date
1 As this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(a), the AJ's findings
of fact and the agency's final decision are subject to de novo review
by the Commission. 29 C.F.R. � 1614.405(a)