0120081966
08-30-2011
Betty J. McConico, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Betty J. McConico,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120081966
Agency No. 1K-281-0043-07
DECISION
On March 19, 2008, Complainant timely filed an appeal from a final
Agency decision (FAD) dated February 25, 2008, concerning her equal
employment opportunity (EEO) complaint alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against based on her race (Black),
sex (female), and reprisal for prior protected EEO activity under an
EEO statute that was unspecified in the record when:
1. on May 9, 2007, she was sent home without pay and told not to come
back until she updated her medication documentation; and
2. on June 13, 2007, she was issued a letter of warning.
Whether Complainant’s claim of disability (left arm and stress) on
the above issues should be subsumed into a pending class action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail Handler at the North Park Annex in Charlotte, NC. On August 13,
2007, she filed an EEO complaint alleging issues 1 and 2, along with the
basis of disability. At the conclusion of the investigation, the Agency
provided Complainant with a copy of the report of investigation and notice
of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant did not request a hearing, and the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that
Complainant failed to prove discrimination.
Old medical information on file indicated that Complainant had a
lifting, carrying, pushing and pulling restriction with her left arm of
five pounds. She injured her left arm on the job in September 2003,
and sometime thereafter worked in a limited duty job prepping mail.
By letter dated November 30, 2006, the Facility Safety Coordinator
(Black female) asked Complainant to update her medical documentation on
her injury. By reference the request strongly suggested that Complainant
use Office of Workers’ Compensation (OWCP) form CA-17, which solicits
the health care provider to check off boxes and fill in fields listing
various medical limitations. Complainant’s last update was in 2005.
Complainant claimed she did not receive the above request until January
2007. The Safety Coordinator wrote that she the request was given to
Complainant in November 2006.1 She wrote that employees on limited
duty were requested to update their medical documentation to offer them
modified job offers within their restrictions and replace them with a
casual employee.
In January 2007, Complainant submitted a completed CA-17 dated February
7, 2006. It had the same medical restrictions recited above, stating they
were permanent. The Safety Coordinator advised Complainant the CA-17 was
unacceptable because it was not current. Complainant told the Safety
Coordinator in January 2007 that her medical documentation was good to
February 2007. Report of Investigation (ROI) at 99. Complainant wrote
that she learned in February 2007 that the physician who treated her left
arm was sent to Iraq. She averred that in March 2007, she met with the
Safety Coordinator and Facility Manager, and the later communicated that
he gave her enough time to update her medical documentation, and wanted
to send her home then for not doing so. According to Complainant, the
Facility Manager advised her that her OWCP claim was closed. Complainant
was given more time, and then started looking for other doctors who could
update her CA-17. She wrote that she saw an identified physician at a
Veterans’ Affairs hospital, and he said he could not complete a CA-17.
On May 9, 2007, the Safety Coordinator and Facility Manager sent
Complainant home and told her not to return until she updated her medical
documentation. According to Complainant, the Facility Manager told her
she was a danger to herself and the Agency. Complainant averred that
on many occasions she explained that her doctor was in Iraq and OWCP
Injury Compensation would have to give her approval, presumably to see
another doctor. The Manager of an Agency Injury Compensation Office
stated that it was Complainant’s responsibility to find a physician,
and Complainant could write a letter to OWCP asking to switch doctors.
Complainant returned to duty status on or about May 21, 2007.
On May 26, 2007, the Safety Coordinator completed a request to give
Complainant a letter of warning because she did not provide medical
documentation for management to properly assign her work within her
medical limitations. The Safety Coordinator wrote in the request that
in an investigative interview on May 23, 2007, Complainant stated her
medical condition was permanent and she could not understand why her
medical documentation from 2006 was not acceptable.
Complainant contended that in May 2007, she learned her treating physician
returned from Iraq. After examining Complainant, he completed a CA-17 on
May 29, 2007, limiting her with her left arm to five pounds of lifting
and carrying. Complainant gave the CA-17 to the Safety Coordinator on
or about May 29, 2007.
The Safety Coordinator issued a letter of warning to Complainant
dated June 4, 2007, charging her with failure to follow
instruction/unsatisfactory work performance. In the letter, the
Safety Coordinator specified that Complainant was issued a letter
on November 30, 2006, asking her to update her medical restrictions.
She wrote Complainant submitted a CA-17 in January 2007 dated February 7,
2006, and was instructed it was unacceptable and to update her medical
documentation. She wrote Complainant failed to do so, and in a May 23,
2007, interview, stated she did not understand why the documentation she
submitted in January 2007, was not acceptable. The Safety Coordinator
wrote that to date Complainant failed to follow her instructions, which
constituted unsatisfactory work performance. The Safety Coordinator later
stated she issued the letter of warning because Complainant refused to
update her medical documentation.
Complainant argued that she was disparately treated from Co-worker 1
(White female), a Mail Processing Clerk. She contended that Co-worker
1 did not submit medical documentation, as requested, but was not taken
off work or disciplined. By letter dated March 8, 2007, the Safety
Coordinator asked Co-worker 1 to update her medical documentation by
March 13, 2007. ROI at 159, 230. Co-worker 1 first submitted a completed
CA-17 dated in August 2006. Id. at 161, 191, 231. She then submitted an
updated CA-17 dated June 28, 2007, which was stamped received, presumably
by the Injury Compensation Office, on July 12, 2007. Id. at 191, 232.
The Safety Coordinator strongly suggested that Co-worker 1 did not refuse
to update her medical documentation. Id. at 189.
In its FAD, the Agency found that Complainant did not make out a prima
facie case of reprisal discrimination. It reasoned that the Safety
Coordinator and Facility Manager were not aware of Complainant’s
prior EEO activity. They stated they were not aware of Complainant’s
prior EEO activity, and Complainant wrote that she did not think they
were aware. The Agency also found that Complainant did not make out
a prima facie case of sex and race discrimination because she did not
show a similarly situated employee was treated favorably. It reasoned
that unlike Complainant, Co-worker 1 updated her medical documentation,
as requested. The Agency found that assuming without finding that
Complainant made out a prima facie case of discrimination, Management
explained that the actions were taken against Complainant because she
refused to update her medical documentation as instructed.
The Agency found that Complainant did not prove that the reasons for
its actions were pretext to mask discrimination. It determined that
while Complainant submitted updated medical documentation prior to being
given the letter of warning, the Safety Coordinator decided to issue
the warning before Complainant submitted her medical documentation.
The Agency also found that Complainant was not harassed and did not
prove discrimination based on disability.
CONTENTIONS ON APPEAL
Complainant, by and through her attorney, argues that she was disparately
treated based on her race. She contends that while Co-worker 1 failed
to submit updated medical documentation as requested and no action was
taken against Co-worker 1, actions were taken against her even though
she explained that the delay was caused by her doctor was in Iraq.
Complainant also argues that the record is deficient because it is
devoid of evidence of how long it took Co-worker 1 to provide medical
documentation and the reasons for her delay.
In opposition to the appeal, the Agency urges the Commission to sustain
its FAD.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant
may establish a prima facie case of reprisal by showing that: (1)
he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Complainant failed to establish a prima facie case of reprisal
discrimination because she did not show the relevant management officials
were aware of her prior EEO activity.
For purposes of analysis, we choose to dispense with the prima facie
inquiry on sex and race since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
The Agency explained that it sent Complainant home and gave her a letter
of warning because she refused to provide updated medical documentation,
as requested. Complainant argues that she was disparately treated
from Co-worker 1. We disagree. Complainant was initially requested
to update her medical documentation by letter dated November 30, 2006,
and despite stringent reminders by the Safety Coordinator and Facility
Manager, did not do so until May 29, 2007.2 Comparison 1 was asked to
provide updated medical documentation by letter dated March 8, 2007, and
submitted medical documentation dated June 28, 2007, by July 12, 2007,
in less time than Complainant. Also, by word Complainant indicated to
management that she believed she was not required to update her medical
documentation, contrary to instruction, and the Safety Coordinator
strongly suggested Co-worker 1 did not do this. We also note that the
Safety Coordinator and Facility Manager, who took the actions against
Complainant, are in the same protected racial group as Complainant.
While Complainant’s doctor being in Iraq likely caused some delay,
it was Complainant’s responsibility to secure another physician, and
she was given ample time to do so. Complainant has failed to prove
discrimination based on reprisal, sex or race.
In a letter by a union steward about a grievance on Complainant being
sent home, the steward wrote that the Safety Coordinator agreed to
determine the method used to get updated medical inquiries for job
injuries for this National Reassessment Process (NPR). Id. at 163.
In a grievance on Complainant’s letter of warning, the union cited
a “violation” of the NPR. Id. at 160. The Commission takes
judicial notice here, that the disability claim raised in Complainant's
complaint is identical to at least one of the claims raised in the class
complaint, McConnell, et. al. v. United States Postal Service (Agency
No. 4B-140-0062-06). Commission records indicate that in 2004, the
Agency began the development of the NRP, an effort to “standardize”
the procedure used to assign work to injured-on-duty employees. In the
class complaint, McConnell claims that the Agency failed to engage in the
interactive process during the NRP in violation of the Rehabilitation Act.
Further, the agency allegedly failed to reasonably accommodate class
members during and after the process.
On May 30, 2008, an EEOC Administrative Judge (AJ) granted class
certification in McConnell, et. al (Hearing No. 520-2008-00053X) which
defined the class as all permanent rehabilitation employees and limited
duty employees at the agency who have been subjected to the NRP from May
5, 2006, to the present, allegedly in violation of the Rehabilitation Act.
The AJ defined the McConnell claims into the following broader complaint:
(1) The NRP fails to provide a reasonable accommodation (including
allegations that the NRP “targets” disabled employees, fails to
include an interactive process, and improperly withdraws existing
accommodation); (2) The NRP creates a hostile work environment; (3)
The NRP wrongfully discloses medical information; and (4) The NRP has an
adverse impact on disabled employees. The Agency chose not to implement
the decision and appealed the matter to the Commission. The Commission
agreed with the AJ's definition of the class and the McConnell claims.
McConnell v. United States Postal Service, EEOC Appeal No. 0720080054
(Jan. 14, 2010).
Upon review of the record in this matter, the Commission finds that
the Agency improperly made merits determination on the disability
claim in Complainant's complaint. The Commission further finds that
Complainant's disability claim is more properly analyzed as part of the
broader McConnell class complaint. Accordingly, Complainant's disability
claim is now subsumed with the McConnell class action.
CONCLUSION
The Agency’s finding in its FAD that it did not discriminate against
Complainant based on her sex; race or reprisal for prior EEO activity is
AFFIRMED. The Agency’s decision that it did not discriminate against
Complainant based on disability is VACATED and REMANDED in accordance
with the order below.
ORDER
The Agency is ordered to subsume Complainant’s disability claim in the
instant complaint into the McConnell class action. See Equal Employment
Opportunity Management Directive-110, Chapter 8, § III(C) (November 9,
1999). The Agency shall provide Complainant with notification that it
is processing the disability claim as subsumed within the class action. A
copy of that notice shall also be provided to the Commission's Compliance
Officer as noted below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
August 30, 2011
__________________
Date
1 The record does not reflect whether it was allegedly hand delivered
or mailed to Complainant. The street number of Complainant’s home
address in the request is off by one digit.
2 While it is possible the request was returned to the Agency because
of an incorrect address, the Safety Coordinator expressed a belief that
the request was made in November 2006.
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0120081966
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081966