01a00215
03-07-2000
Antoinette Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.
Antoinette Smith, )
Complainant, )
) Appeal No. 01A00215
v. ) Agency No. 1H-321-0034-97
) Hearing No. 150-97-8455X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (African-American),
sex (female), and reprisal (prior EEO activity), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant alleges she was discriminated against when: (1)
on December 14, 1996, she was placed on Administrative Leave; and (2)
on January 14, 1997, she was issued a Notice of Removal. 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 following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Mailhandler at the agency's Tallahassee, Florida facility.
On or about September 13, 1996, complaint sustained an on-the-job injury
when she fell on the workroom floor. Complainant initially told agency
officials that she fell off a pallet. Later, complainant alleged that
a co-worker pulled a pallet into her intentionally. The agency then
initiated an investigation into the incident, but could not determine
who was at fault.
On or about September 19, 1996, complainant went to see her personal
physician. The physician provided complainant with a CA-17 form
indicating she could not return to work until her follow up exam on
October 9, 1996. On October 9, 1996, complainant was returned to full
duty. On October 10, 1996, complainant called in sick, complaining of
pain, and requested continuation of pay. Complainant did not work from
October 10, 1996 until October 23, 1996. On October 24, 1996, complainant
returned to work. After one hour, complainant advised her supervisor
she could not work due to the pain. Thereafter, complainant called in
sick every night, and then brought in medical documentation releasing
her from work until November 13, 1996. On October 13, 1996, complainant
provided another CA-17 from her physician, releasing her from work until
December 6, 1996. Complainant returned to work on December 10, 1996.
Soon thereafter, complainant's supervisor (Black female) informed her
that she was being placed on administrative leave for perpetrating
an accident to go to school. The AJ found that on October 1, 1996,
the Plant Manager (White male) contacted the Postal Inspectors and
requested an investigation into complainant's injury. Specifically, the
Plant Manager requested the investigation because prior to her injury,
complainant requested, and was denied, a leave of absence to attend
school from August 24, 1996 until December 14, 1997. The Plant Manager
testified that he contacted the Postal Inspectors because complainant's
absence coincided with her leave of absence request. Furthermore,
complainant did not initially inform agency officials that the accident
was intentionally caused by another individual.
As part of their investigation, the Postal Inspector conducted video
surveillance of complainant's activities throughout October and
November 1996. Complainant's supervisor then reviewed the video tape
and conducted her own investigation. Specifically, the supervisor
reviewed the Notice of Traumatic Injury completed by complainant, spoke
with the Safety and Injury Compensation Specialist, and the Plant Manager.
Upon review of the video, the Supervisor found that complainant repeatedly
violated her physician's restrictions by performing activities, such as
driving a car, carrying packages, walking up and down stairs, shopping,
attending classes, and carrying books. As a result of the investigation,
complainant was placed on administrative leave pending her removal
charges.
During conversations with the Injury Specialist, the supervisor determined
that between October and November, complainant refused limited duty
work within her restrictions, such as, answering phones, handling
nixie mail<2>, or other work accomplished while sitting. Specifically,
complainant testified that, �she was unable to do anything but take care
of her girls.�
In light of the evidence on the videotape, as well as the fact
complainant refused limited duty work as it was contrary to her
work restrictions, the supervisor spoke to the Plant Manager about
administrative leave and removal. The Plant Manager agreed with the
supervisor's determination, and concluded that complainant was attending
school while on sick leave. The Plant Manager also agreed with the
determination in light of complainant's sick leave slips which her
physician completed. Specifically a sick leave slip dated November 4,
1996 approved complainant's absences prior to the date she went to see
the physician. The Plant Manager suspended complainant and placed
her on administrative leave. She was then terminated for violating
her work restrictions. The Plant Manager testified that, based upon
his observations on the video, complainant was capable of performing
limited duty work, but refused to do so.
Believing she was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on January 29,
1997. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
recommended decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race or sex discrimination because she failed to demonstrate
that similarly situated employees not in her protected classes were
treated differently under similar circumstances. Complainant identified
several individuals who she alleged were involved in accidents at work,
but were not surveilled by postal inspectors, placed on administrative
leave, and terminated. The AJ found however, that with exception of
one comparative (white male), no other employee had requested a leave of
absence prior to his or her injury, as complainant had done. Therefore,
the AJ found that these individuals were not similarly situated because
their accidents did not occur under suspicions circumstances. In fact,
the Plant Manager testified that on the same day he called the postal
inspectors about complainant's accident, he referred another employee
for investigation (white male).<3> In sum, the AJ found that the
circumstances surrounding the other comparatives were not similar to
complainant's such that an inference of discrimination could be inferred.
The AJ did find, however, that complainant established an inference of
reprisal discrimination. Specifically, she showed the requisite causal
connection between her prior EEO activity, and the adverse action herein.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the supervisor
determined that complainant should be placed on administrative leave and
terminated because she believed complainant was guilty of misrepresenting
the extent of her injuries. The supervisor relied on her investigation,
which included viewing the videotape. This videotape, which was also
viewed by the AJ, showed complainant engaged in activities while her
physician represented that she was totally incapacitated. After learning
complainant refused limited duty work, the supervisor determined
complainant was exaggerating her injuries to avoid coming to work.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ found
that although complainant's physician viewed the videotape and determined
complainant was not violating her work restrictions, this determination
came after complainant had already been terminated. Although complainant
argued that his determination as to complainant's work restrictions
was based on the regular Mailhandler position, complainant could not
resolve why her physician did not permit her to answer phones and work
nixie mail. The AJ found that, more likely than not, complainant did
not inform her physician as to the availability of limited duty work.
After viewing the video and listening to the testimony of the witnesses,
the AJ determined that agency officials were reasonable in concluding
complainant was violating her work restrictions. Accordingly, the
AJ found that complainant failed to persuade her that the agency
discriminated against her as alleged.
On September 1, 1999, the agency issued a final decision finding no
discrimination. On appeal, complainant restates arguments previously
made at the hearing. Complainant also contends that the AJ erred when
she failed to introduce the arbitrator's award reinstating complainant
back into the position, and granted her back pay. She argued that the
AJ erred when she determined complainant violated her work restrictions.
She argues the agency otherwise failed to comply with policies related
to limited duty.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Importantly, we note that
complainant failed to present any evidence whatsoever that the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race or sex.
Although the decision to investigate and terminate complainant may
not have been appropriate in the view of the arbitrator, we note the
arbitrator's opinion is not the critical inquiry before us. Rather, we
are concerned with whether agency officials terminated complainant based
on a discriminatory animus. Nothing proffered by complainant persuades
us that an illegal motive was used in the decision to investigate
and terminate complainant. We discern no basis to disturb the AJ's
recommended 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 agency's final decision.
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). 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 7, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant1 On 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.
2Nixie mail clerks handle mail that has been returned due to illegible
addresses. They correct the address, or return the mail to the sender.
3This individual had purportedly requested leave to move his mobile home.
When his request was denied, he called in sick. The postal service
surveilled the individual, but he was never caught on video.