Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionApr 11, 2014
0120140687 (E.E.O.C. Apr. 11, 2014)

0120140687

04-11-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120140687

Agency No. 1J603000913

DECISION

On December 2, 2013, Complainant filed an appeal from the Agency's October 28, 2013, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processer at the Agency's facility in Bedford Park, Illinois.

On April 23, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (carpel tunnel)1 when beginning on November 26, 2012, and continuing, she was denied opportunities to work overtime.

During the investigation into her complaint, Complainant contended that two management officials intentionally discriminated against her because of her disability when she was denied opportunities to work overtime beginning on November 26, 2012. Complainant asserts that although her name appeared on the overtime desired list (ODL) for Tour 3 as a mail processer, she was not given the opportunity to work overtime, nor was she informed as to why she was not permitted to do so. The record indicates that in December 2012, Complainant's union steward sent a letter to her supervisor asking why Complainant was not allowed to work overtime. Complainant contended, however, that her supervisor failed to respond to the letter. Complainant also indicated that although she was not able to perform core duties of her position due to her medical condition and had been given a modified assignment in the security office, she was able to perform manual sorting duties in the automation section and could have performed overtime work there. However, Agency officials continuously passed over her name on the Tour 3 ODL.

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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed.

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").

A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions with respect to the subject claim. The record indicates that since November 26, 2012, Complainant has filed approximately 80 grievances through the Agency's negotiated grievance procedure regarding the denial of her requests to work overtime. Each time, the Agency has responded to Complainant advising her that in accordance with Agency policy and the provisions of the collective bargaining agreement, the overtime schedule cannot include employees who are unable to perform all the core duties of the unit for which overtime is available. Complainant concedes that she was not able to perform the core duties of her mail processor position. As such, she cannot perform all the core duties of the unit in question and so, according to management, could not be scheduled to work overtime in that unit.

The above-described explanation from the responsible management officials is sufficient to rebut any initial inference of discrimination raised by Complainant's prima facie case. The ultimate burden shifts to Complainant to prove, by a preponderance of the evidence, that the proffered reasons for management's actions were a pretext for unlawful discrimination.

However, we find that Complainant has failed to meet her burden of proving pretext. The record shows that on October 20, 2009, Complainant accepted a modified position due to her medical limitations. The most recent duty status report, dated March 30, 2013, described Complainant's permanent restrictions as no pulling, pushing, intermittent simple grasping, no fine manipulation, no reaching above shoulder, and no operating machinery, and no lifting more than 5 pounds and only then, on an intermittent basis. Complainant testified that she has been offered accommodation for her medical restrictions in the form of an assignment to the security office, and she concedes this accommodation has been effective. Complainant does not allege that there were any opportunities to perform overtime work in the security office, or that other employees, who similarly could not perform all the core duties in her former unit, were allowed to work overtime.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination.

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.

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

April 11, 2014

__________________

Date

1 For purposes of analysis, the Commission assumes without finding, that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g) (i).

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0120140687

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120140687