0120080250
04-30-2010
Cheryl L. Gore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Cheryl L. Gore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120080250
Agency No. 4J-530-0147-05
DECISION
On October 11, 2007, complainant filed an appeal from the agency's
September 10, 2007, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
Whether complainant was discriminated against on the basis of disability
(neck/myofascial pain syndrome) when she was not permitted to make her
own time clock punches, which resulted in a loss of pay and retirement;
and when, in August and September 2005, she was not permitted to do her
bid assignment.1
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Carrier Technician at the agency's Wauwatosa, Wisconsin facility.
The record reveals that complainant was required to punch into different
operations depending on whether she was performing a light-duty
assignment2 or her bid-duty assignment. Complainant indicated that
there were times when she forgot to punch over to the different code
so her supervisor offered to move complainant into the 959 operation3
on a daily basis. The supervisor made complainant's clock punches for
over five years, but in September 2005 complainant indicated that she
wanted to start making the punches herself because she believed that
the time punches had been entered incorrectly. Complainant maintains
that as a result of the incorrect punches she had suffered a loss of
pay and retirement benefits and was susceptible to losing her position.
Complainant also contends that on August and September 2005, she was not
permitted to do her bid assignment. She maintains that she was taken off
of her bid assignment to do light duty work. She contends that this was a
disciplinary action that significantly reduced her job responsibilities.
On November 22, 2005, complainant filed the instant EEO complaint.
The agency initiated an investigation. At the conclusion of the
investigation, complainant was provided with a copy of the report of
investigation and notice of her right to request a hearing before an
EEOC Administrative Judge (AJ). Initially, complainant requested a
hearing before an AJ but subsequently withdrew her request in favor
of a final agency decision (FAD). In accordance with complainant's
request, the agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
The agency concluded that complainant had failed to prove that she was
subjected to discrimination as alleged.
Specifically, the FAD found that complainant failed to establish a
prima facie case of disability discrimination but even assuming for the
sake or argument that she had, the agency had articulated legitimate
nondiscriminatory reasons for its actions. The agency explained that
complainant was not permitted to make her own clock punches because in the
past, she had forgotten to punch over, which reflected that she was on her
route, when in fact she was doing office work due to her restrictions.
Regarding complainant's allegation that she was not permitted to work her
bid assignment, the agency explained that due to complainant's medical
restrictions, she was not able to complete the duties of her position.
Agency management indicated that complainant was continually unable
to finish setting the route in the allotted period of time, so she was
moved to light duty when this occurred. The agency states that, as a
result, complainant was offered a modified job offer to comply with the
functional terms of the medical log and injury compensation.
The agency indicated that other than complainant's assertions, she
failed to provide any direct evidence which indicated that the agency's
legitimate nondiscriminatory reasons were pretext for discrimination.
The agency therefore found that complainant failed to prove that she
was subjected to discrimination as was alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she was aggrieved by these actions
because she believed that the time punches would be looked at to determine
whether she was engaging in productive work. She contends that she heard
that the agency was attempting to get rid of limited-duty employees
and she wanted to make sure that the punches clearly showed when she
engaged in productive work. Complainant explained that the hours that
she was clocked into 959 did not count as productive work. Further,
complainant contends that management manipulated her hours and made her
"throw" on routes for the entire four hours that her restrictions allowed
instead of the standard two and one-half hours. Complainant maintains
that the more she was required to work the full time allotted for her
restrictions, the worse her condition became. She contends that she
was forced to have her physician alter her restrictions because of the
agency's manipulation, and that this angered management. Complainant's
maintains that the core of her case is that management has repeatedly
"disrespected" her medical restrictions. Complainant also alleges that
her supervisor was fully aware of her disability.
Complainant further contends that, once management realized that they
could not continue altering her timekeeping, they began to intentionally
harass her by taking her off her bid assignment. She maintains this
happened only occasionally initially but after they realized that
it bothered her it occurred more frequently. Complainant contends that
management did not explain why it took her away from doing productive work
in order to do nonproductive work. She maintains that all of the actions
taken by the agency were acts of harassment and retaliation against her.
She indicates that the agency got tired of her and decided to start
"playing games" against her. Finally, the complainant reiterates facts
that are contained in the record.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
We find that the agency's FAD correctly found that the evidence does
not support complainant's allegation that she was discriminated
against. Specifically, even if we assume arguendo without so
finding that complainant established a prima facie case of disability
discrimination, the record reveals that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The agency explained that
complainant was not allowed to make her own clock punches because in the
past she had forgotten to move from one operation to another. The record
noted that complainant found discrepancies in the clock punches, but we
note there is no indication that the complainant sustained a loss of pay
or retirement benefits on account of the agency's actions. On appeal,
complainant indicates that the only reason that she became interested in
the clock punches was because she had heard that the agency was going to
be terminating limited-duty employees and she wanted to make sure that
the record properly showed that she doing productive work. Nonetheless,
there is no evidence in the record which indicates that complainant was
denied the opportunity because of her claimed disability.
Further, with regard to complainant's allegation that she was not allowed
to work her bid assignment, the agency explained that, in order to comply
with her restrictions, complainant was taken off of her bid and moved to
light duty. The record supports this contention, as complainant admits
that she could not consistently do the required work in the time allotted.
Further, on appeal complainant acknowledges that some days were better
than others and as she got stronger she did more but as she did more bid
work, but as she did more the agency wanted more, and this put a strain on
her injury to the point that she had to have her restrictions adjusted.
The Commission finds that the agency articulated legitimate
nondiscriminatory reasons for its actions. We find that other than
complainant's conclusory assertions and theories regarding why the agency
did things, she has presented no evidence that the agency's reasons are
pretext for discrimination.
Additionally, the Commission notes that complainant has asserted that
the issues involved in this complaint are incidents of harassment and
a hostile work environment. When determining whether a complainant's
harassment claims are sufficient to state a hostile or abusive work
environment claim, the Commission has repeatedly found that claims of a
few isolated incidents of alleged harassment usually are not sufficient
to state a harassment claim. See Phillips v. Department of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health
and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States
Postal Service, EEOC Request No.05940695 (February 9, 1995). In the
instant case, the Commission finds that, even if all of complainant's
allegations are taken as true and considered as a whole, the evidence
of record does not does not demonstrate that the incidents complained
of are sufficiently severe or pervasive to establish a claim of hostile
work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the final agency
decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
April 30, 2010
Date
1 In addition to the above stated claims, complainant's complaint
initially included the allegation that after she reported a safety hazard,
a supervisor watched her throw mail. The agency dismissed complainant's
entire complaint for failure to state a claim. Complainant appealed
the agency's decision. The Commission affirmed the dismissal of the
supervisor watching her throw mail but remanded for further processing
the issues found in this case. Cheryl L. Gore v. United States Postal
Service, EEOC Appeal No. 0120061729 (August 30, 2006).
2 Although the record repeatedly refers to complainant performing
light-duty work, it appears that complainant is actually a limited-duty
employee, i.e., her limitations result from a work-related condition.
3 This code indicated that complainant was performing a light-duty
assignment.
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0120080250
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080250