0120122735
09-19-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120122735
Agency No. 1E-801-0043-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 7, 2012, 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. For the following reasons, the Agency's FAD which found that Complainant failed to show that she was discriminated against as alleged is Affirmed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Denver Processing and Distribution Center (P & DC) in Denver, Colorado. On October 19, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (Cervical) and reprisal for prior protected EEO activity when:
1. On July 7, 2011, she was issued an Assignment Letter which limited her to
Twenty-eight hours of work per week;
2. On September 5, 6 and 12, 2011, her request for leave was denied;
3. On September 6, 2011, she was talked down to, humiliated and belittled when leave was denied;
4. On September 21, 2011, the message she left for the Plant Manager was not acknowledged or returned by him; and
5. On October 8, 2011, she was issued an Assignment Letter which limited her to
Thirty-two hours of work per week.1
Following an investigation by the Agency, Complainant requested a FAD. The FAD addressed claims 1 and 5 which remained after Complainant withdrew claims 2, 3, and 4. The FAD found that Complainant failed to demonstrate that she was subjected to reprisal or discrimination. Specifically, the FAD found that assuming arguendo that Complainant established a prima facie case of reprisal and disability discrimination, management articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant was issued Assignment Letters on July 7, 2011, and October 8, 2011, limiting her work to 28 hours and 32 hours respectively, because there was no meaningful necessary work available within her restrictions. Management explained that the Agency was required as a result of the National Reassessment Process to offer light duty employees meaningful work within their limitations and with respect to Complainant as work became available within her restrictions more hours would be added to her. Management indicated that, according to the provisions of the various National Agreements, an employee who was on a light duty assignment was not guaranteed any number of hours of work per day or week.
Due to Complainant's twenty pound lifting restriction, she had worked a light duty position for over ten years. As a result of the cut in her hours, Complainant filed a grievance arguing that the light duty assignment she received on July 6, 2011 was for only twenty-eight hours per week. She asserted that she was entitled to a forty-hour work week schedule. On December 7, 2011, management and Complainant's union representative agreed to resolve the grievance by entering into a full and complete settlement and paying her a lump sum amount of $2,000.00 for the period of Pay Period 15-2 through Pay Period 22-2. To show pretext in the instant complaint, Complainant maintained that other employees who were on light duty were able to continue working forty hours. The Agency maintained that the comparators sited by Complainant did not have the same lifting restrictions that she had and therefore were not similarly situated to her. Accordingly, the Agency indicated that Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not provide a brief on appeal. The Agency contends that it articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant's hours were reduced in order to provide her meaningful work within her restrictions. The Agency maintains that Complainant failed to show that the articulated reasons were pretext for discrimination. The Agency requests that its FAD be affirmed.
ANALYSIS AND FINDINGS
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. We find that even if we assume arguendo that Complainant established a prima facie case of reprisal and disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's hours where reduced as the Agency was required to provide her with meaningful work that was within her restrictions. Further, the Agency maintained that as more work became available within her restrictions Complainant's hours were to be increased. We find that Complainant failed to provide any evidence and the record does not suggest that discriminatory animus was involved with regard to the Agency's issuance of Assignment Letters. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred.
The Agency's FAD is hereby AFFIRMED.
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
___9/19/14_______________
Date
1 On February 13, 2012, the Agency dismissed the entire complaint because the Complainant failed to cooperate and provide relevant information in accordance with 29 C.F.R. � 1614.107(a)(7). On February 14, 2012, the Agency rescinded the dismissal of the complaint. Further, Complainant subsequently withdrew Claims 2, 3, and 4 and the purviews of race and national origin.
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0120122735
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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