0120071143
08-22-2008
Camille Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Camille Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071143
Agency No. 4G-770-0222-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 28, 2006 final decision 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. Complainant alleged that the agency discriminated
against her on the bases of race (Black) and disability (Neck and Head)
when on April 4, 2006, complainant was given a Notice of Removal with
an effective date of May 19, 2006.
Complainant filed a formal complaint on July 13, 2006. On September 19,
2006, the agency transmitted the investigatory file to complainant.
Complainant failed within the thirty (30) calendar days to request a
hearing with an EEOC Administrative Judge (AJ) or an immediate final
agency decision without a hearing. Therefore the agency issued a final
agency decision.
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).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On October 17, 2005, complainant injured her neck and head. Following the
injury complainant received medical attention and was placed on medical
leave with compensation until October 19, 2005, when she came back to
work. However, complainant was unable to work the entire day because of
the pain in her neck and head. After receiving a work capacity evaluation
by a physician, complainant was restricted from doing certain physical
activities.1 Complainant was placed on leave from October 25, 2005, until
December 7, 2005. Complainant's supervisor (S1) started an investigation
on October 25, 2005. The investigation was based on S1's suspicion of the
extent of complainant's disability. Report of Investigation (ROI), p. 12.
The investigator's report concluded on February 15, 2006. It stated that
complainant performed restricted physical activities outside of work that
the physician had limited complainant from performing. Complainant was
observed driving her car on several occasions as well as carrying trash
bags and lifting them into a dumpster. ROI, Ex. 4, p. 12. Complainant
was also videotaped putting away groceries in her car while holding a
cellular phone to her ear with her shoulder and head. ROI, Ex. 4, p. 5.
On April 4, 2006, a meeting was held between complainant and a supervisor
(S2). Complainant was given a notice of removal for improper conduct and
a violation of medical restrictions while claiming injury on duty. ROI,
Ex. 2. Complainant does not rebut the information in the investigatory
report but rather asserts that she was feeling better during the days
she was found to be performing restricted physical activities outside
of work. ROI, p. 9. Moreover, complainant states she did not read the
work capacity evaluation before she submitted it to the agency. ROI,
p. 8.
On the basis of complainant's Title VII and Rehabilitation Act theories
of discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the notice of removal was
warranted because complainant was performing tasks while on medical
leave that she had been restricted from doing. Complainant must show,
by a preponderance of the evidence, that the agency's legitimate,
nondiscriminatory reasons are pretext for discrimination. Complainant
failed to do so.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Commission
to AFFIRM the agency's final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 tends 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 (S0408)
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 (Z0408)
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 22, 2008
__________________
Date
1 These restrictions included but were not limited to sitting, walking,
reaching above shoulder, bending or stooping, and operating a motor
vehicle to/from work. Also the restrictions included no repetitive
movements or lifting objects. CA-17 Form, Oct. 22, 2005.
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0120071143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071143