Cecilia Hayes, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 25, 2002
01a06048 (E.E.O.C. Sep. 25, 2002)

01a06048

09-25-2002

Cecilia Hayes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cecilia Hayes v. United States Postal Service

01A06048

September 25, 2002

.

Cecilia Hayes,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A06048

Agency No. 4-J-460-0041-99

Hearing No. 240-AO98-5002X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final action

concerning her formal EEO complaint of unlawful employment discrimination

in violation of Section 501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the reasons that follow, the agency's final

action is affirmed.

ISSUE PRESENTED

The issue presented herein is whether complainant has established, by

preponderant evidence, that she was discriminated against on the basis

of disability (degenerative bone disease) when she was removed from the

agency effective December 30, 1998.

BACKGROUND

Complainant, employed by the agency as a Letter Carrier at the time of the

alleged discriminatory event, filed a formal complaint on April 18, 1999,

in which she alleged what has been identified as the issue presented.

The agency accepted the complaint for investigation. At the conclusion

of the investigation, the agency notified complainant of her right

to request either a hearing before an EEOC administrative judge (AJ)

or an immediate agency decision without a hearing. Complainant chose

the former. On August 8, 2000, the AJ informed the parties that a showing

necessitating a hearing was not made. She then issued a decision without

a hearing pursuant to 29 C.F.R. �1614.109(e)(3). In that decision, the

AJ stated that complainant had not been discriminated against as alleged.

The agency's final action on this matter implemented the AJ's decision.

It is from the agency's action that complainant appeals.

Information in the evidentiary file indicates that complainant was

on medical leave from January 1998 to September 1998. During that

time, complainant submitted seven CA-8 forms, Claim for Continuing

Compensation on Account of Disability.<1> In each case, complainant

either answered �not applicable,� left blank, or drew a slash though

questions 9a and 9b on the forms. Both questions sought information

regarding whether complainant was employed during the period for which

she sought compensation benefits.

On June 10, 1998, the Postal Inspector learned from the Injury

Compensation Unit that complainant's CA-8 forms may not have been

accurately completed. An Injury Compensation Specialist advised

the Inspector that she had received information indicating that

complainant was employed at Creations, Inc. Based on that information,

the Inspector contacted the President of Creations. The President

stated that complainant leased space from Creations in seven stores.

The President further stated that complainant provided crafts for each

of the seven locations. Each location sold those crafts, acting as an

agent for complainant. Every two weeks, Creations mailed complainant a

check as compensation for the items sold. According to records provided

to the Inspector by Creations, complainant was paid a total of $7,692.40

from the period covering January 11, 1998 to July 11, 1998.

On October 14, 1998, the Inspector interviewed complainant. During the

interview, complainant confirmed that she had operated a business.

When asked why she did not put this information on her CA-8 forms, she

stated that she did not think it qualified because the business broke

even, and therefore did not provide her with any income. One month

later, complainant was interviewed again. She was informed by the

Operations Manager that this interview was her opportunity to respond

before disciplinary action was taken regarding the inaccurate information

provided on the CA-8 forms. During the interview, complainant was asked

a series of questions to which she answered, �No comment.�

On or around December 1, 1998, complainant was issued a Notice of Removal.

The notice indicated that complainant was being removed for failure

to disclose employment information on her CA-8 forms. The notice

also indicated that the removal was effective on December 30, 1998.

Approximately two and a half weeks later, complainant contacted an EEO

counselor and alleged that her removal was based on disability.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (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.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

Courts have adopted and applied the Title VII burdens of proof, discussed

supra, to disability discrimination. See Norcross v. Sneed, 755 F.2d

113 (8th Cir. 1985). For purposes of this analysis, we will assume

that complainant is an individual with a disability. See 29 C.F.R. �

1630.2(g).

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether she has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this case, the agency has stated legitimate, nondiscriminatory reasons

for its actions. Specifically, the agency stated that complainant was

removed for failing to disclose employment information on the CA-8 forms

she submitted to the Office of Workers' Compensation Programs (OWCP).

Because the agency has proffered a legitimate, nondiscriminatory

reason for the alleged discriminatory event, complainant now bears

the burden of establishing that the agency's stated reason is merely a

pretext for discrimination. Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (December 6, 1996). Complainant can do this

by showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

In this case, complainant has failed to meet that burden. In attempting

to meet her burden, complainant points to two decisions issued over a

year after her removal (one from the OWCP, the other from an arbitrator)

which appear to absolve her of the removal charges levied by the agency.

But those decisions, standing alone, are not enough to show that the

reason articulated by the agency regarding complainant's removal was

pretextual. The fact remains that at the time of the removal, the agency

had an honest and reasonable belief that complainant knowingly falsified

information on the CA-8 forms. It is that honest and reasonable belief,

not discriminatory animus directed at disabled individuals, that motivated

complainant's removal. For those reasons, we find that complainant has

failed to meet her pretext burden.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response thereto, and arguments and

evidence not specifically addressed in this decision, we hereby AFFIRM

the agency's final action.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

September 25, 2002

__________________

Date

1The first form was submitted on March 3, 1998. The subsequent forms

were submitted on the following: March 30, 1998; April 19, 1998; May 27,

1998; June 12, 1998; July 5, 1998; and September 11, 1998.