01971189
08-31-2000
Betty A. Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Betty A. Thompson v. United States Postal Service
01971189
August 31, 2000
Betty A. Thompson, )
Complainant, )
) Appeal No. 01971189
v. ) Agency Nos. 4-I-640-1005-94, 1011-94,
) 1034-94, 1035-94
William J. Henderson, ) Hearing Nos. 280-95-4274X, 4275X,
Postmaster General, ) 4276X, 4277X
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency concerning her allegation that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq.<1> The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented herein are whether the complainant has established
that the agency discriminated against her based on physical disability
(plantar fasciitis) and reprisal (prior EEO activity) when: (1) she
was converted to full-time status; (2) it rescinded the posting for
a Clerk-Stenographer position; (3) she was chastised for going into
overtime status by 13 units; and (4) she was denied a transfer to the
Independence, Missouri, Post Office.
BACKGROUND
The complainant, an employee at the Liberty, Missouri, Post Office,
filed four formal complaints in late 1993 and early 1994 in which she
raised what have been identified as Issues 1 through 4. Following
investigations of these complaints, an administrative hearing was held
before an administrative judge (AJ) on all four complaints in June 1996.
In a recommended decision (RD) dated August 19, 1996, the AJ initially
found that the complainant is a �qualified individual with a disability.�
The AJ proceeded to find discrimination with regard to Issue 2 and no
discrimination with regard to Issues 1, 3, and 4. The agency thereafter
issued a final decision (FAD) in which it rejected the former finding
and accepted the latter findings. It is from this decision that the
complainant now appeals.
Issues 1 and 4
The record reveals that, prior to August 1993, the complainant was
working in the limited duty position of Part-Time Flexible Schedule
(PTFS) Distribution Clerk. In July 1993, the complainant was offered
that position on a full-time basis, and following her acceptance she was
converted to full-time status in August 1993. According to the Facility's
postmaster, the conversion was based on an agreement between management
and the union whereby certain PTFS craft employees were converted to
full-time positions.
The complainant's primary objection to the conversion is that, to the
extent the permanent position was a limited duty position, management
placed her in it as a means of preventing her from transferring out of
the facility. This objection is based on a memorandum of understanding
(MOU) stating that management may deny a transfer to an employee who has
a live disciplinary record and/or is on light or limited duty. In this
regard, the record reveals that the action encompassed in Issue 4, i.e.,
the denial of the complainant's request for a transfer to the agency's
Independence, Missouri facility, was premised in part on the provisions
in the MOU.
In examining Issue 1, the AJ initially concluded that the complainant
is a �qualified individual with a disability� based on a finding
by a U.S. District Court judge that, as a result of plantar
fasciitis in her left foot, she is unable to perform the functions
of the Window/Distribution Clerk position she held prior to going on
limited duty. The AJ also found, however, that the complainant had not
established that her conversion to full-time status constituted either
disability discrimination or retaliation.
Regarding Issue 4, the AJ found that the MOU, to the extent it permitted
management to deny transfers to employees on light and limited duty,
violated 29 C.F.R. � 1614.203(d)(1) by tending to screen out qualified
individuals with disabilities. The AJ found further, however, that the
denial was also premised on the fact that the complainant had a live
disciplinary record. For that reason, the AJ concluded that the denial
of the transfer request was not discriminatory.
Issue 2
This issue involves the complainant's non-selection for a
Clerk-Stenographer position in the agency's Kansas City, Kansas facility
in July 1993. The record reveals that, in early 1993, a new individual
(the Responsible Official, RO) became the postmaster at that facility.
The RO testified that he needed a secretary, and that, for that reason,
he had asked personnel to advertise a Clerk-Stenographer position. In the
interim, the RO's secretarial duties were performed by two individuals,
including a General Clerk. The RO testified that the General Clerk did
such an effective job that, by the time the Clerk-Stenographer position
was advertised, he had determined that a General Clerk would be able to
fulfill his secretarial needs.<2> For this reason, the advertisement
for the Clerk-Stenographer position was rescinded and a vacancy for a
General Clerk position was posted.
The AJ, based on the evidence of record and the credibility of the
witnesses, concluded that the complainant had shown actions taken by the
agency �from which one could infer, if such actions remain unexplained,
that it is more likely than not, such actions were based on discriminatory
criteria.� In support of this conclusion, the AJ noted that, although
the RO testified that he needed someone to do �straight-out typing [of]
correspondence to customers and employees,� the position description
for General Clerk states that typing is not performed �for substantial
periods of time.� The AJ also noted that the agency had not retained
the documents relating to the recruitment for the Clerk-Stenographer
position. Based on these factors, the AJ concluded, �In light of the
foregoing, I find that the [a]gency failed to articulate a legitimate,
nondiscriminatory reason for its action with sufficient clarity to afford
[the complainant] a full and fair opportunity to establish pretext.�
As support for that conclusion, the AJ cited the holding in Hollis
v. Department of Veterans Affairs, EEOC Appeal No. 01934600 (May 3,
1994).
Issue 3
The final issue raised by the complainant is that, on November 23, 1993,
she was chastised by a supervisor for working 13 units of overtime the
previous day. According to the supervisor, he merely told the complainant
that she needed to be cognizant of her time due to budget constraints
regarding overtime. The AJ found that, because the supervisor's actions
did not constitute a concrete action, the complainant was not aggrieved.
ANALYSIS AND FINDINGS
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 regarding
whether or not discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). The Commission
also notes, however, that an administrative judge's conclusions of law
are entitled to a de novo standard of review. EEOC - Management Directive
(MD) 110, 9-16 (November 9, 1999).
Issues 1 and 4
To establish a prima facie case of disability discrimination under
a disparate treatment theory, the complainant must demonstrate:
1) she is an �individual with a disability� as defined in 29
C.F.R. � 1630.2(g);<3> 2) she is a �qualified individual with
a disability� as defined in 29 C.F.R. � 1630.2(m); and (3) she was
subjected to an adverse personnel action under circumstances giving
rise to an inference of disability discrimination. See Prewitt v. United
States Postal Service, 662 F.2d 292 (5th Cir. 1981). An �individual with
a disability� is defined as someone who: (1) has a physical or mental
impairment which substantially limits one or more of such person's major
life activities; (2) has a record of such an impairment; or (3) is
regarded as having such an impairment. 29 C.F.R. � 1630.2(g)(1)-(3).
�Major life activities� include functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(i). The Commission has also
recognized lifting as a major life activity. See Saul v. U.S. Postal
Service, EEOC Request No. 05950006 (May 2, 1996).
The AJ found that the complainant is a �qualified individual with a
disability� based on a finding by a U.S. District Court judge that,
as a result of the plantar fasciitis in her left foot, she is unable
to perform the functions of the Window/Distribution Clerk position she
originally held. The Commission notes, however, that the complainant's
inability to perform in one particular position does not, by itself,
mean that she has a disability. Instead, the appropriate question
is whether her impairment substantially limits a major life activity.
The medical evidence of record reveals that the complainant is unable to
walk and/or stand for more than three to four hours at a time and that she
cannot lift more than 25 to 30 pounds. Having considered this evidence,
the Commission concludes that, although the complainant's impairment
affects several major life activities, none of these activities were
substantially limited. Therefore, the Commission concludes that the
complainant does not have an actual disability. Furthermore, the evidence
of record does not establish that the complainant was either regarded as
disabled or that she had a record of a disability. For these reasons,
the Commission finds that the complainant has not established that she
is an �individual with a disability,� and, as such, cannot establish a
prima facie case of disability discrimination.
The Commission does find, however, that the complainant is able
to establish a prima facie case of retaliation. Specifically, the
record reveals that, shortly prior to the events encompassed in Issues
1 and 4, the complainant had engaged in EEO activity of which relevant
management officials were aware. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976). Because the complainant has established a prima
facie case, the agency now has the burden of articulating a legitimate,
nondiscriminatory reason for the challenged actions. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. at 253 (1981). We find that
the agency has met this burden. Regarding Issue 1, officials testified
that the complainant was converted to a full-time position as a result of
the MOU providing that PTFS craft employees would be placed in full-time
positions. With regard to Issue 4, several reasons were articulated for
denying the complainant's transfer request, the primary one being that
the MOU allowed management to deny the transfer requests of employees who
had either a live disciplinary record or were on light or limited duty.
At this point, the complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination.
The complainant can do this either directly, by showing that a
discriminatory reason more likely motivated the agency, or indirectly,
by showing that the agency's proffered explanation is unworthy of
credence. Id. at 256. The Commission agrees with the AJ and finds
no evidence of pretext regarding Issue 1. In particular, it is not
apparent, as the complainant alleges, that she was converted to full-time
status in order to prevent her from transferring out of the Facility.
Although the AJ, in considering Issue 4, found that the MOU tended to
screen out disabled individuals, the complainant has not established
that she is disabled. For that reason, and because the denial of her
transfer was also based on her live disciplinary record, we find it
unnecessary to address that question at this time.<4> Accordingly,
the Commission finds the complainant has not established discrimination
and/or retaliation with regard to this issue.
Issue 2
In analyzing this issue, the AJ did not explicitly find that the
complainant had established a prima facie case. In considering that
question, the Commission initially finds, for the reasons discussed
previously, that the complainant cannot establish a prima facie case of
disability discrimination. Furthermore, the Commission finds insufficient
evidence to support a prima facie case of retaliation. Specifically,
the RO testified that he did not know the complainant and that he was
unaware of her prior EEO activity. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. at 324. Because the AJ found
discrimination, however, the Commission will, for purposes of analysis,
assume that the complainant is able to establish a prima facie case
As discussed, the AJ found that the agency was unable to articulate
a legitimate, nondiscrimina-tory reason for the rescission of the
Clerk-Stenographer position. Having carefully reviewed the evidence of
record, the Commission finds that this conclusion constitutes an error
of law. The AJ's finding was premised on the combination of two factors,
namely, her determination that the RO was not credible and the agency's
failure to preserve the records pertaining to the Clerk-Stenographer
position. Although the AJ relied on the holding in Hollis v. Department
of Veterans Affairs, EEOC Appeal No. 01934600 (May 3, 1994), we find that
this case is distinguishable from Hollis. In that case, the complainant
was non-selected for a position by a panel. Not only had the agency
not retained the records pertaining to the selection process, but the
panelists were unable to credibly explain the bases for their ratings.
The combination of these factors led the Commission to conclude that
the agency was unable to articulate a reason why the complainant was
not selected.
In the present case, by contrast, the agency's failure to maintain the
promotion package did not bear on its ability to articulate a legitimate,
nondiscriminatory reason. In so finding, we note that the reason
articulated for the rescission of the Clerk-Stenographer position, i.e.,
that the RO determined the General Clerk working for him would suffice,
was unrelated to the contents of the promotion package. Furthermore,
whether or not the RO is credible pertains to the question of pretext, not
to whether the agency has met its burden of production. In this regard,
the Supreme Court has stated that, to meet its burden at this stage,
the defendant need not establish that it was actually motivated by the
proffered reason(s). Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 254 (1981). Instead, it must simply articulate a reason that is
legally sufficient to justify a judgment for the defendant. Id. at 255.
The Commission finds that, under this standard, the RO's articulated
reason is sufficient to satisfy the agency's burden of production.
The AJ, having determined that the agency did not meet its burden
of production, did not address whether the complainant was able to
demonstrate pretext. The Commission notes, however, that her credibility
finding regarding the RO is relevant to that question and must be
addressed. In considering that finding, the Commission concludes that
it is not supported by substantial evidence. As discussed, the finding
was based on the AJ's determination that the RO could not reconcile his
belief that a General Clerk could perform �straight-out typing� with the
PD's statement that General Clerks do not type for �substantial�periods
of time. The Commission is not persuaded, however, that a discrepancy
exists. First, we note that the RO never testified that the General Clerk
who worked for him typed for �substantial� periods of time. Therefore,
it is not apparent that those individual's duties were inconsistent
with the PD. Second, it is apparent from the RO's testimony that he
was not explicitly aware of what the PD said regarding typing, and
that his conclusion that a General Clerk was sufficient to handle his
typing duties was based on the fact that, between March and July 1993,
one had successfully done so. Finally, to the extent General Clerks do,
in fact, type, there is nothing inherently illogical or suspicious about
the RO's testimony that a General Clerk could handle his typing needs.
The Commission does agree with the AJ that, once the agency was on
notice that the complainant had filed an EEO complaint, it should have
preserved the documentation pertaining to the Clerk-Stenographer position.
However, because a selection for the Clerk-Stenographer position was
never actually made, this documentation has limited probative value.
At most, an inference could be drawn that the complainant was the best
qualified of the individuals who applied. Even assuming that to be the
case, however, the complainant still needs to demonstrate that management
discriminatorily withdrew the Clerk-Stenographer position in order to
prevent her from being selected. Not only is there insufficient evidence
to support such a conclusion, but the RO offered unrebutted testimony that
he did not know the complainant and was unaware of her prior EEO activity.
Accordingly, the Commission finds that the complainant has not established
discrimination with regard to this issue.
Issue 3
As discussed, the AJ found that this issue did not state an actionable
claim. Even assuming, however, that it does, the Commission finds
that the complainant has not established that the action in question
was discriminatory. Specifically, we find that the official who spoke
to the complainant articulated a legitimate, nondiscriminatory reason
for the talk, i.e., that the complainant had improperly worked 13 units
of overtime. The Commission finds the complainant has not adduced
sufficient evidence to demonstrate that this reason is pretextual.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is the
decision of the Commission to AFFIRM the FAD and find the complainant has
not established that the agency discriminated against her as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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. 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
_08-31-00_____ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 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.
02 The record reveals that, although both General Clerks and
Clerk-Stenographers perform secretarial duties, General Clerks also
perform other duties more directly related to the processing of mail.
03 The 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.
04 Nevertheless, to the extent many light and limited duty employees
are working in that capacity as a result of disabilities, the Commission
is troubled by a policy that serves to disadvantage such employees.