Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Mar 19, 2015

0120130449 (E.E.O.C. Mar. 19, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120130449

Agency No. 4G-760-0010-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
September 17, 2012 final Agency decision (FAD) 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., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s General Mail Facility in Amarillo, Texas. Complainant suffered an on-
the-job Carpal Tunnel Syndrome injury in November 1994, and was given a limited duty job
consisting of answering telephones, ordering merchandise for the Window Unit, stocking
supplies in the lobby, and other miscellaneous duties. Complainant worked under lifting,
pushing/pulling, grasping, fine manipulation, and reaching restrictions. In November 2006,
the Agency implemented the National Reassessment Program (NRP) in which modified duty
assignments were reviewed to ensure that employees were working within their restrictions and
that assignments consisted of only operationally-necessary tasks.

On April 23, 2010, Complainant received notice that there was no work available within her
restrictions due to operational changes. Specifically, many of the tasks Complainant
previously performed were no longer needed, and Complainant’s condition rendered her
unable to perform some of the other duties. Complainant initially used annual leave, but was
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placed on the Office of Workers’ Compensation (OWCP) rolls in late-April/early-May 2010.
On November 3, 2011, the Postmaster sent Complainant a Notice of Separation – On OWCP
Rolls for More Than One Year, effective December 5, 2011.

On January 12, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of national origin (Hispanic), disability, age (56), and in
reprisal for prior protected EEO activity when she received the Notice of Separation. At the
conclusion of the investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge. When Complainant did not respond within the timeframe provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant established prima facie
case of discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. In particular, the Postmaster stated that, with the
guidance of the Fort Worth District Human Resources Department, he sent Complainant the
November 3, 2011 Notice of Separation. He explained that Complainant had been on the
extended OWCP rolls for over a year after having been placed there in 2010, as a result of the
National Reassessment Program (NRP), with no improvement in her ability to perform the
core duties of her position. Further, he noted the Complainant could not perform any of the
duties of her held position. The Postmaster added that the Agency followed the Employee and
Labor Relations Manual in its attempts to determine if work was available for Complainant.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that she established a prima facie case of discrimination and
reprisal. Complainant argues that the Agency’s actions were arbitrary and capricious.
Complainant contends that Agency officials lied and committed perjury and that they cannot
give a non-frivolous reason for their actions. Complainant alleges that the Postmaster forced
her into the NRP which caused her to be involuntarily separated. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, 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 she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. 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
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Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
In the instant case, assuming arguendo that Complainant is an individual with a disability and
otherwise established a prima facie case of discrimination and reprisal, the Commission finds
that the Agency articulated legitimate, nondiscriminatory reasons for its actions. More
specifically, the Postmaster affirmed that he issued the Notice of Separation because
Complainant had been on the extended OWCP rolls for over a year with no improvement in
her ability to perform the core duties of her position. ROI, at 182. Complainant had been
placed on the OWCP rolls as a result of the NRP in April 2010. Id. at 220. The Postmaster
noted that Complainant’s medical restrictions were such that she could not perform the duties
of her position and there were not enough miscellaneous duties at the facility within her
restrictions. Id

. at 108, 183. Further, the Agency was unable to locate any available work
within Complainant’s restrictions at any facilities within 50 miles. ROI, Exs. 7, 8. As a result
and pursuant to the Employee and Labor Relations Manual, the Postmaster issued the Notice of
Separation. ROI, Ex. 26, at 10.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. at 256.
As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record lacks persuasive evidence that the Postmaster’s issuance of
the Notice of Separation was tainted by discriminatory animus. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency's reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
or reprisal as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

0120130449

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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

(S0610)
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.

0120130449

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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

Date
March 19, 2015